SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 7)*
TREMONT CORPORATION
(Name of Issuer)
Common Stock, $1.00 par value
(Title of Class of Securities)
894745207
(CUSIP Number)
STEVEN L. WATSON
THREE LINCOLN CENTRE
SUITE 1700
5430 LBJ FREEWAY
DALLAS, TEXAS 75240-2694
(972) 233-1700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 21, 1998
(Date of Event which requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following pages)
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Valhi Group, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not Applicable
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,531,857
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
2,531,857
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,531,857
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.6%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
National City Lines, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not Applicable
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,882,217
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
2,882,217
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,882,217
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.8%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NOA, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not Applicable
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,882,217
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
2,882,217
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,882,217
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.8%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dixie Holding Company
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not Applicable
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,531,857
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
2,531,857
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,531,857
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.6%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dixie Rice Agricultural Corporation, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not Applicable
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Louisiana
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,531,857
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
2,531,857
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,531,857
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.6%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Southwest Louisiana Land Company, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
Not Applicable
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Louisiana
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,882,217
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
2,882,217
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,882,217
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.8%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Contran Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,118,588
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
3,118,588
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
3,118,588
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46.3%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
CUSIP No. 894745207
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Harold C. Simmons
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP(SEE
INSTRUCTIONS)
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS(SEE INSTRUCTIONS)
Not applicable
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
7 SOLE VOTING POWER
-0-
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,375,841
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
10 SHARED DISPOSITIVE POWER
3,375,841
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
-0-
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS) [ X ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
AMENDMENT NO. 6
TO SCHEDULE 13D
This amended statement on Schedule 13D (collectively, this "Statement")
relates to the common stock, $1.00 par value per share (the "Shares"), of
Tremont Corporation, a Delaware corporation (the "Company"). Items 2, 3, 4, 5,
6 and 7 of this Statement are hereby amended as set forth below.
Item 2. Identity and Background.
No change except for the addition of the following:
(a) This Statement is filed by (i) Valhi Group, Inc. ("VGI") and National
City Lines, Inc. ("National") as the direct holders of Shares, (ii) by virtue of
the direct and indirect ownership of securities of VGI and National (as
described below in this Statement), NOA, Inc. ("NOA"), Dixie Holding Company
("Dixie Holding"), Dixie Rice Agricultural Corporation, Inc. ("Dixie Rice"),
Southwest Louisiana Land Company, Inc. ("Southwest") and Contran Corporation
("Contran") and (iii) by virtue of his positions with Contran and certain of the
other entities (as described in this Statement), Harold C. Simmons
(collectively, the "Reporting Persons"). By signing this Statement, each
Reporting Person agrees that this Statement is filed on its or his behalf.
VGI and National Inc. are the direct holders of approximately 35.1% and
5.2%, respectively, of the 6,729,698 Shares outstanding as of December 8, 1997
according to information received from the Company (the "Outstanding Shares").
Together, VGI and National may be deemed to control the Company. National, NOA
and Dixie Holding are the direct holders of approximately 73.3%, 11.4% and
15.3%, respectively, of the outstanding common stock of VGI. Together,
National, NOA and Dixie Holding may be deemed to control VGI. Contran and NOA
are the direct holders of approximately 85.7% and 14.3%, respectively, of the
outstanding common stock of National and together may be deemed to control
National. Contran and Southwest are the direct holders of approximately 49.9%
and 50.1%, respectively, of the outstanding common stock of NOA and together may
be deemed to control NOA. Dixie Rice is the holder of 100% of the outstanding
common stock of Dixie Holding and may be deemed to control Dixie Holding.
Contran is the direct holder of approximately 88.7% and 54.3% of the outstanding
common stock of Southwest and Dixie Rice, respectively, and may be deemed to
control Southwest and Dixie Rice.
Mr. Harold C. Simmons is chairman of the board, president and chief
executive officer of VGI, National, NOA, Dixie Holding and Contran. Mr. Simmons
is also chairman of the board and chief executive officer of Dixie Rice and
Southwest.
Substantially all of Contran's outstanding voting stock is held by two
trusts, the Harold C. Simmons Family Trust No. 1 dated January 1, 1964 and the
Harold C. Simmons Family Trust No. 2 dated January 1, 1964 (together, the
"Trusts"), established for the benefit of Mr. Simmons' children and
grandchildren, of which Mr. Simmons is the sole trustee. As sole trustee of
each of the Trusts, Mr. Simmons has the power to vote and direct the disposition
of the shares of Contran stock held by each of the Trusts. Mr. Simmons,
however, disclaims beneficial ownership of such shares.
The Harold Simmons Foundation, Inc. (the "Foundation") directly holds
approximately 3.7% of the Outstanding Shares. The Foundation is a tax-exempt
foundation organized for charitable purposes. Harold C. Simmons is the chairman
of the board and chief executive officer of the Foundation and may be deemed to
control the Foundation. Mr. Simmons, however, disclaims beneficial ownership of
any Shares held by the Foundation.
Valhi, Inc. ("Valhi"), NL Industries, Inc. ("NL") and Valmont Insurance
Company ("Valmont") directly hold approximately 1.5%, 0.5% and 0.5% of the
Outstanding Shares, respectively. Valhi and the Company are the direct holders
of approximately 58.3% and 17.7%, respectively, of the outstanding common stock
of NL and together may be deemed to control NL. VGI, National and Contran are
the direct holders of approximately 74.7%, 10.0%, and 7.6%, respectively, of the
outstanding common stock of Valhi. Together, VGI, National and Contran may be
deemed to control Valhi. Valhi is the direct holder of 100% of the outstanding
common stock of Valmont and may be deemed to control Valmont.
Mr. Harold C. Simmons is chairman of the board and president of Valhi and
chairman of the board of NL.
The CDCT No. 2 directly holds approximately 3.5% and 0.2% of the
Outstanding Shares and Valhi common stock, respectively. Boston Safe Deposit
and Trust Company serves as the trustee of the CDCT No. 2. Contran established
the CDCT No. 2 as an irrevocable "rabbi trust" to assist Contran in meeting
certain deferred compensation obligations that it owed to Harold C. Simmons. If
the CDCT No. 2 assets are insufficient to satisfy such obligations, Contran is
obligated to satisfy the balance of such obligations as they come due. Due to
the terms of the CDCT No. 2, Contran (i) retains the power to vote the shares of
Tremont and Valhi common stock held directly by the CDCT No. 2, (ii) retains
dispositive power over such shares and (iii) may be deemed the indirect
beneficial owner of such shares. Mr. Simmons, however, disclaims beneficial
ownership of any shares held by the CDCT No. 2, except to the extent of his
interest as a beneficiary of the CDCT No. 2.
The Combined Master Retirement Trust (the "CMRT") directly holds
approximately 0.1% of the Outstanding Shares and the outstanding shares of Valhi
common stock, respectively. The CMRT is a trust formed by Valhi to permit the
collective investment by trusts that maintain the assets of certain employee
benefit plans adopted by Valhi and related companies. Mr. Simmons is the sole
trustee of the CMRT and the sole member of the trust investment committee for
the CMRT. Mr. Simmons is a participant in one or more of the employee benefit
plans that invest through the CMRT. Mr. Simmons, however, disclaims beneficial
ownership of the Shares held by the CMRT, except to the extent of his vested
beneficial interest therein.
Valmont and NL directly own 1,000,000 shares and 1,186,200 shares,
respectively, of Valhi common stock. The Reporting Persons understand that the
shares of Valhi common stock owned by Valmont and NL are treated as treasury
stock by Valhi for voting purposes and for the purposes of this Statement are
not deemed outstanding.
By virtue of the holding of the offices, the stock ownership and his
service as trustee, all as described above, (a) Mr. Simmons may be deemed to
control the entities described above and (b) Mr. Simmons and certain of such
entities may be deemed to possess indirect beneficial ownership of Shares
directly held by certain of such other entities. However, Mr. Simmons disclaims
such beneficial ownership of the Shares beneficially owned, directly or
indirectly, by any of such entities.
Harold C. Simmons' spouse is the direct owner of 3,747 Shares. Mr. Simmons
may be deemed to share indirect beneficial ownership of such Shares. Mr.
Simmons disclaims all such beneficial ownership.
Item 3. Source and Amount of Funds or Other Consideration.
No change except for the addition of the following:
The total amount of funds required by Valhi to acquire the Shares purchased
by it as reported in Item 5(c) was $5,520,888.75 (including commissions). Such
funds were or will be provided by Valhi's cash on hand.
Item 4. Purpose of Transaction.
No change except for the addition of the following:
Valhi purchased the Shares reported in Item 5(c) of this Amendment in order
to increase its equity interest in the Company.
Depending upon their evaluation of the Company's business and prospects,
and upon future developments (including, but not limited to, performance of the
Shares in the market, availability of funds, alternative uses of funds, and
money, stock market and general economic conditions), any of the Reporting
Persons or other entities that may be deemed to be affiliated with Contran may
from time to time purchase Shares, and any of the Reporting Persons or other
entities that may be deemed to be affiliated with Contran may from time to time
dispose of all or a portion of the Shares held by such person, or cease buying
or selling Shares. Any such additional purchases or sales of the Shares may be
in open market or privately negotiated transactions or otherwise.
As described under Item 2 of this Statement, Harold C. Simmons may be
deemed to control the Company.
Item 5. Interest in Securities of the Issuer.
No change except for the addition of the following:
(a) VGI, National, the Foundation, the CDCT No. 2, Valhi, NL, Valmont,
Harold C. Simmons' spouse and the CMRT are the direct beneficial owners of
2,361,300, 350,360, 250,000, 236,371, 103,900, 36,167, 30,490, 3,747 and 3,506
of the Shares, respectively.
By virtue of the relationships described under Item 2 of this Statement:
(1) Valhi may each be deemed to be the beneficial owner of the
170,557 Shares (approximately 2.5% of the Outstanding Shares) directly held
by Valhi, NL and Valmont;
(2) VGI, Dixie Holding and Dixie Rice may each be deemed to be the
beneficial owner of the 2,531,857 Shares (approximately 37.6% of the
Outstanding Shares) directly held by VGI, Valhi, NL and Valmont;
(3) National, NOA and Southwest may each be deemed to be the
beneficial owner of the 2,882,217 Shares (approximately 42.8% of the
Outstanding Shares) directly held by VGI, National, Valhi, NL and Valmont;
(4) Contran may be deemed to be the beneficial owner of the 3,118,588
Shares (approximately 46.3% of the Outstanding Shares) directly held by
VGI, National, the CDCT No. 2, Valhi, NL and Valmont; and
(5) Harold C. Simmons may be deemed to be the beneficial owner of the
3,375,841 Shares (approximately 50.2% of the Outstanding Shares) directly
held by VGI, National, the Foundation, the CDCT No. 2, Valhi, NL, Valmont,
Mr. Simmons' spouse and the CMRT.
Except to the extent of his vested beneficial interest in Shares directly
held by the CMRT and to the extent of his interest as a beneficiary of the CDCT
No. 2, Mr. Simmons disclaims beneficial ownership of all Shares.
(c) The table below sets forth purchases of the Shares by the Reporting
Persons during the last 60 days. All of such purchases were effected by Valhi
on the New York Stock Exchange.
Approximate Price
Per Share
(exclusive of
Date Amount of Shares commissions)
- --------- ----------------- ------------------
01/14/98 1,400 $52.3750
01/15/98 100 $52.6250
01/15/98 200 $53.3125
01/15/98 200 $53.6250
01/15/98 300 $53.8750
01/15/98 1,500 $53.9375
01/15/98 3,000 $54.0000
01/16/98 2,000 $53.7500
01/16/98 4,000 $54.0000
01/16/98 2,000 $54.0000
01/20/98 10,000 $53.0000
01/20/98 10,000 $53.2500
01/20/98 5,000 $53.5000
01/21/98 2,400 $52.5000
01/21/98 25,000 $52.7500
01/21/98 35,000 $53.0000
01/22/98 1,800 $53.0000
(d) Each of VGI, National, the Foundation, the CDCT No. 2, Valhi, NL,
Valmont, Mr. Simmons' spouse and the CMRT has the right to receive and the power
to direct the receipt of dividends from, and proceeds from the sale of, the
Shares directly held by such entity or person.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
No change except for the addition of the following:
VGI, National and Contran are parties to a $40 million credit facility
dated as of November 8, 1996 with U.S. Bank National Association and Societe
Generale, Southwest Agency (the "U.S. Bank/SoGen Facility"), as amended.
Borrowings under the U.S. Bank/SoGen Facility bear interest at the rate
announced publicly from time to time by each bank as its prime rate or at a rate
of 1.75% over LIBOR, are due November 6, 1998 or such extended maturity date as
may be mutually agreed to, and are collateralized by certain Shares and shares
of Valhi common stock. As of January 23, 1998, no money had been borrowed under
the U.S. Bank/SoGen Facility and VGI and National had pledged 1,942,107 Shares
and 350,360 Shares, respectively, under the U.S. Bank/SoGen Facility. The
foregoing summary of the U.S. Bank/SoGen Facility is qualified in its entirety
by reference to Exhibits 2, 3 and 4 to this Statement, which are incorporated
herein by this reference.
Item 7. Material to be Filed as Exhibits.
Item 7 is amended and restated as follows:
Exhibit 1* Contran Deferred Compensation Trust No. 2 (Amended and Restated),
dated as of January 2, 1998, between Contran Corporation and
Boston Safe Deposit and Trust Company.
Exhibit 2 Loan Agreement, dated as of November 8, 1996, among Valhi
Group, Inc., National City Lines, Inc., Contran Corporation,
United States National Bank of Oregon and Societe Generale,
Southwest Agency(incorporated by reference to Exhibit 10 to
Amendment No. 59 to the Valhi Schedule 13D).
Exhibit 3* Extension Agreement, dated as of November 7, 1997, among Contran
Corporation, National City Lines, Inc., Valhi Group, Inc., U.S.
Bank National Association and Societe Generale, Southwest Agency.
Exhibit 4* First Amendment to Loan Agreement, dated as of January 9, 1998,
among Contran Corporation, National City Lines, Inc., Valhi
Group, Inc., U.S. Bank National Association and Societe Generale,
Southwest Agency.
- ----------
* Filed herewith.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: February 2, 1998
/s/ Harold C. Simmons
--------------------------------
Harold C. Simmons
Signing in his individual capacity only.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: February 2, 1998
/s/ Steven L. Watson
--------------------------------
Steven L. Watson
Signing in the capacities listed on Schedule
"A" attached hereto and incorporated herein by
reference.
SCHEDULE A
Steven L. Watson, as Vice President of each of:
CONTRAN CORPORATION
DIXIE RICE AGRICULTURAL CORPORATION, INC.
DIXIE HOLDING COMPANY
NATIONAL CITY LINES, INC.
NOA, INC.
VALHI GROUP, INC.
SOUTHWEST LOUISIANA LAND COMPANY, INC.
EXHIBIT INDEX
Exhibit 1* Contran Deferred Compensation Trust No. 2 (Amended and Restated),
dated as of January 2, 1998, between Contran Corporation and
Boston Safe Deposit and Trust Company.
Exhibit 2 Loan Agreement, dated as of November 8, 1996, among Valhi
Group, Inc., National City Lines, Inc., Contran Corporation,
United States National Bank of Oregon and Societe Generale,
Southwest Agency (incorporated by reference to Exhibit 10 to
Amendment No. 59 to the Schedule 13D filed on April 2, 1997 with
the Commission by Valhi Group, Inc., National City Lines, Inc.,
NOA, Inc., Dixie Holding Company, Dixie Rice Agricultural
Corporation, Inc., Southwest Louisiana Land Company, Inc.,
Contran Corporation and Harold C. Simmons with respect to the
common stock of Valhi, Inc.)
Exhibit 3* Extension Agreement, dated as of November 7, 1997, among Contran
Corporation, National City Lines, Inc., Valhi Group, Inc., U.S.
Bank National Association and Societe Generale, Southwest Agency.
Exhibit 4* First Amendment to Loan Agreement, dated as of January 9, 1998,
among Contran Corporation, National City Lines, Inc., Valhi
Group, Inc., U.S. Bank National Association and Societe Generale,
Southwest Agency.
- ----------
* Filed herewith.
CONTRAN DEFERRED COMPENSATION TRUST NO. 2
Amended and Restated
This Amended and Restated Agreement is made as of this 2nd day of January,
1998 by and between Contran Corporation, a Delaware corporation ("Company"), and
Boston Safe Deposit and Trust Company, a Massachusetts business trust
("Trustee").
WHEREAS, Company and NationsBank of Texas, N.A. ("Former Trustee") have
previously entered into the Contran Deferred Compensation Trust No. 2 dated
October 1, 1995 (as amended December 18, 1996) (hereinafter called "Trust");
WHEREAS, NationsBank of Texas, N.A. has requested to be removed as Trustee
of the Trust effective January 2, 1998;
WHEREAS, Boston Safe Deposit and Trust Company accepts the appointment as
trustee of the Trust effective January 2, 1998;
WHEREAS, the Company and Trustee desire to amend and restate the Trust;
WHEREAS, Company has adopted the nonqualified deferred compensation plan(s)
as listed in Appendix A (the "Plan(s)").
WHEREAS, Company has incurred or expects to incur liability under the terms
of such Plan(s) with respect to the individuals participating in such Plan(s);
WHEREAS, Company has established a Trust and wishes 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(s);
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(s) 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;
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(s); and
WHEREAS, for purposes of this Trust Agreement, the term "subsidiary" of
Company shall mean an entity that is controlled by Company directly or
indirectly through one or more intermediaries;
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:
(i) 260,458 shares of the common stock, par value $0.01 per
share, of Valhi, Inc., a Delaware corporation and subsidiary of
Company;
(ii) 97,065 shares of the common stock, par value $1.00 per
share, of Tremont Corporation, a Delaware corporation and subsidiary
of Company; and
(iii) 134,720 shares of the common stock, par value $1.00 per
share, of Keystone Consolidated Industries, Inc., a Delaware
corporation and subsidiary of Company;
all of which shares 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(s) 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 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 thirty 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(s) as of the date on which the Change of
Control occurred. The Trustee shall have no duty to determine the
sufficiency of any such contribution or commence an action in a court of
law to compel the Company to make the required contribution. The Trustee
shall have no independent duty of inquiry with respect to the occurrence of
a Change in Control. Company shall furnish the Trustee with written notice
of the occurrence of a Change in Control. Absent such notice, if any Plan
participant shall provide the Trustee with written notice of a possible
Change of Control, the Trustee may request that the Company furnish
evidence to determine whether a Change of Control has occurred. In
performing any of its obligations or taking any discretionary action under
this Trust Agreement which is dependent upon a Change of Control having
occurred, the Trustee may rely on its determination, including any
determination based upon an opinion of counsel (who may be counsel to the
Company or the Trustee) or upon information provided by the continuing
Directors of the Company or otherwise available to the Trustee, that a
Change of Control has occurred. For this purpose, the continuing Directors
of the Company as of the time of a possible change of control or insolvency
are the persons who were directors immediately prior to such possible
change of control or insolvency.
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(s)), 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
withholding of any federal, state or local taxes as Company shall direct in
writing to be withheld with respect to the payment of benefits pursuant to
the terms of the Plan(s) and shall promptly pay to the Company in cash such
amounts withheld. The Company shall pay such amounts withheld to the
appropriate taxing authorities.
(b) The entitlement of a Plan participant or his or her beneficiaries
to benefits under the Plan(s) shall be determined by Company or such party
as it shall designate under the Plan(s), and any claim for such benefits
shall be considered and reviewed under the procedures set out in the
Plan(s).
(c) Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of
the Plan(s). 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(s), Company shall make the balance of
each such payment as it falls due. Trustee shall notify Company where
principal and earnings are not sufficient but shall not have a duty to
require that supplemental payments be made to Plan participants or
supplemental contributions be made to the Trust.
(d) Company determination of Payment Schedules and a participant's
entitlement to benefits shall be made annually by Company with respect to
the deferred compensation accrued each year and may not thereafter be
modified by Company without the participant's consent.
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.
(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. In all cases, Trustee shall be
entitled to conclusively rely upon the written certification of the
continuing Directors of the Company when determining whether Company
is insolvent.
(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 the Company's general creditors. Nothing in this Trust
Agreement shall 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(s) 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).
(5) 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(s) (as certified by Company) 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. Payments to Company.
Except as provided in Section 3 or Section 5(c) hereof, after the Trust has
become irrevocable, Company shall have no right or power to direct Trustee to
return to Company or to divert to others any of the Trust assets before all
payment of benefits have been made to Plan participants and their beneficiaries
pursuant to the terms of the Plan(s).
Section 5. Investment Authority.
(a) Except as limited by Section 5(b), the Trustee shall have the
powers, rights and duties in addition to those provided elsewhere in this
agreement or by law to be exercised only pursuant to the direction of the
Company or an investment manager appointed by the Company: to invest and
reinvest part or all of the trust fund in any real property, securities
(including stock or rights to acquire stock) or obligations issued by
Company or subsidiaries of the Company (provided such securities or
obligations are publicly traded), stocks, mutual fund shares (including
proprietary funds of the Trustee or its affiliates), partnership interests,
venture capital investments, bonds, debentures, notes, commercial paper,
treasury bills, any common, commingled or collective trust funds (including
proprietary funds of the Trustee or its affiliates), or pooled investment
funds, any deposit accounts or funds maintained by a legal reserve life
insurance company in accordance with an agreement between the Trustee and
such insurance company or a group annuity contract issued by such insurance
company to the Trustee as contractholder, any interest-bearing deposits
held by any bank or similar financial institution (including Trustee or its
affiliates), and to diversify such investments so as to minimize the risk
of large losses unless under the circumstances it is clearly prudent not to
do so. In no event shall the Trust invest directly in real estate. Trust
assets shall be limited to domestic United States assets or securities
which may be held through the Depository Trust Company.
(b) Trustee shall not have any investment discretion with respect to
the assets of the Trust and shall not sell or otherwise dispose of any
assets that are deposited by Contran with the Trust unless it is directed
to do so by Company in writing. All rights associated with assets of the
Trust shall be exercised by Company or the person designated by Company,
and shall in no event be exercisable by or rest with Plan participants.
Voting rights with respect to Trust assets will be exercised by the
Company.
(c) Company shall have the right at anytime, and from time to time in
its sole discretion, to substitute assets of equal fair market value for
any asset held by the Trust. This right is exercisable by Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
(d) To settle, compromise, or submit to arbitration any claims, debt
or damages due or owing to or from the Trust; to commence or defend suits
or legal proceedings to protect any interest or the Trust; and to represent
the Trust in all suits or legal proceedings in any court or before any
other body or tribunal;
(e) To take all action necessary to pay for authorized transactions,
including borrowing or raising monies from any lender, including Trustee,
in its corporate capacity in conjunction with its duties under this
Agreement and upon such terms and conditions as Trustee may deem advisable
to settle security purchases and/or foreign exchange or contracts for
foreign exchange, and securing the repayments thereof by pledging all or
any part of the assets held. Trustee shall be entitled to collect from the
Trust assets sufficient cash for reimbursement, and if such cash is
insufficient, dispose of the assets of the Trust to the extent necessary to
obtain reimbursement;
(f) To appoint with prior written approval of Company custodians,
subcustodians or subtrustees, domestic or foreign (including affiliates of
Trustee), as to part or all of the Trust; provided, however, that Trustee
shall not be liable for the acts or omissions of any subcustodian appointed
under this Section 5;
(g) To hold property in nominee name, in bearer form, or in book
entry form, in a clearinghouse corporation or in a depository (including an
affiliate of Trustee), so long as Trustees records clearly indicate that
the assets held are a part of the Trust; provided however, that Trustee
shall not be responsible for any losses resulting from the deposit or
maintenance of securities or other property (in accordance with market
practice, custom, or regulation) with any recognized foreign or domestic
clearing facility, book-entry system, centralized custodial depository, or
similar organization; and;
(h) Settle indirect investments in Real Estate (the "Real Estate")
and exercise such other powers as may be required in connection with the
Fund's investments in Real Estate. The Trustee shall have no
responsibility or discretion with respect to the ownership, management,
administration, operation or control of any Real Estate. To the extent
permitted by law, the Trustee shall be indemnified by the Company, to the
extent not paid by the Fund, from all claims, liabilities, losses, damages
and expenses, including reasonable attorneys' fees and expenses, arising
from or in connection with any matter relating to any Real Estate held in
the Trust and which gives rise to: (I) any violation of any applicable
environmental or health or safety law, ordinance, regulation or ruling; or
(ii) the presence, use, generation, storage, release, threatened release,
or containment, treatment of disposal of any petroleum, including crude oil
or any fraction thereof, hazardous substances, pollutants or contaminants
as defined in the Comprehensive Environmental Response Compensation and
Liability Act, as amended (CERCLA) or hazardous, toxic or dangerous
substances or materials as any of these terms may be defined under any
federal or state law in the broadest sense from time to time. This
indemnification shall survive the sale or other disposition of any Real
Estate investment of the Fund or the termination of this Agreement.
(i) Generally to do all acts, whether or not expressly authorized,
which the Trustee may deem necessary or desirable for the protection of the
Trust.
Notwithstanding anything to the contrary contained in this Trust Agreement, in
the event of a Change in Control as defined in Section 14(d), the Trustee shall
have and exercise investment discretion with respect to all assets of the Trust.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 7. 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 thirty days following the close of each calendar
year and within thirty 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.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in
like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken
pursuant to a direction, request or approval given by Company which is
contemplated by, and in conformity with, the terms of the Plan(s) (as
certified to the Trustee by the Company) or this Trust and is given in
writing by Company. In the event of a dispute between Company and a party,
Trustee may apply to a court of competent jurisdiction to resolve the
dispute. Company agrees to indemnify Trustee against Trustee's costs,
expenses and liabilities (including, without limitation, reasonable
attorney's fees and expenses) arising out of or relating to any action or
inaction taken by trustee in reliance upon direction, request or approval
given by the Company.
(b) 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,
reasonable 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.
(c) Trustee may consult with legal counsel (who may also be counsel
for Company generally) with respect to any of its duties or obligations
hereunder.
(d) 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.
(e) 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.
(f) 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 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.
(g) Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be responsible or liable for any losses to the Trust
resulting from any event beyond the reasonable control of the Trustee, its
agents or subcustodians, including but not limited to nationalization,
strikes, expropriation, devaluation, seizure, or similar action by any
governmental authority, de facto. or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, levies or other charges affecting the
Trust's property; or the breakdown, failure or malfunction of any utilities
or telecommunications systems; or any order or regulation of any banking or
securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts or war,
terrorism, insurrection or revolution; or acts of God; or any other similar
or third-party event. This Section shall survive the termination of this
Trust Agreement.
Section 9. Contractual Income and Settlement.
(a) Contractual Income. Trustee shall credit the Trust Fund with
income and maturity proceeds on securities on contractual payment date net
of any taxes or upon actual receipt as agreed between Trustee and Company.
To the extent Company and Trustee have agreed to credit income on
contractual payment date, Trustee may reverse such accounting entries with
back value to the contractual payment date if Trustee reasonably believes
that such amount will not be received by it within a reasonable time but in
no event later than two weeks following contractual payment date.
(b) Contractual Settlement. Trustee will attend to the settlement of
securities transactions on the basis of either contractual settlement day
accounting or actual settlement day accounting as agreed between Company
and Trustee. To the extent Company and Trustee have agreed to settle
certain securities transactions on the basis of contractual settlement date
accounting, Trustee may reverse with back value to the contractual
settlement day any entry relating to such contractual settlement where the
related transactions remain unsettled but in no event later than two weeks
following contractual settlement date.
Section 10. Compensation and Expenses of Trustee.
(a) 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.
(b) If Trustee advances cash or securities for any purpose, including
the purchase or sale of foreign exchange or of contracts for foreign
exchange, or in the event that Trustee shall incur or be assessed taxes,
interest, charges, expenses, assessments, or other liabilities in
connection with the performance of this Agreement, except such as may arise
from its own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the Trust Fund under this
agreement shall be security therefor and Trustee shall be entitled to
collect from the Trust Fund sufficient cash for reimbursement, and if such
cash is insufficient, dispose of the assets of the Trust Fund held under
this Agreement to the extent necessary to obtain reimbursement. To the
extent Trustee advances funds to the Trust for disbursement or to effect
the settlement of purchase transactions, Trustee shall be entitled to
collect from the Trust Fund any amount equal to what would have been earned
on the sums advanced (an amount approximating the "federal funds" interest
rate).
Section 11. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company,
which shall be effective thirty days after receipt of such notice unless
Company and Trustee agree otherwise.
(b) Prior to a Change of Control, Trustee may be removed by Company
on thirty 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 one year.
(d) If Trustee resigns within one year of a Change of Control, as
defined herein, Trustee shall select a successor trustee in accordance with
the provisions of Section 12(b) hereof prior to the effective date of
Trustee's resignation or removal.
Section 12. Appointment of Successor.
(a) If Trustee resigns or is removed in accordance with Section 10 or
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 or is removed pursuant to the provisions of
Section 11(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 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.
(c) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 7 and 8 hereof. The successor Trustee shall not be
responsible for and Company shall indemnify and defend the successor
Trustee from any claim or liability resulting from any action or inaction
of any prior Trustee or from any other past event, or any condition
existing at the time it becomes successor Trustee.
Section 13. Amendments 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(s) or shall make the
Trust revocable after it has become irrevocable in accordance with
Section 1(b) hereof.
(b) 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(s). 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(s), Company may
terminate this Trust prior to the time all benefit payments under the
Plan(s) have been made. All assets in the Trust at termination shall be
returned to Company.
(d) Notwithstanding any other provision in this Trust Agreement, this
Trust Agreement may not be amended within one year of the occurrence of a
Change of Control.
Section 14. 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 Texas.
(d) For purposes of this Trust, Change of Control shall mean the
purchase or other acquisition by any person, entity or group of persons,
within the meaning of section 13(d) or 14(d) of the Securities Exchange Act
of 1934 ("Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Act) of
30 percent or more of either the outstanding shares of common stock or the
combined voting power of Company's then outstanding voting securities
entitled to vote generally, or the approval by the stockholders of Company
of a reorganization, merger, or consolidation, in each case, with respect
to which persons who were stockholders of Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
more than 50 percent of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated Company's then outstanding securities, or a liquidation or
dissolution of Company or of the sale of all or substantially all of
Company's assets.
(e) Under no circumstances shall Trustee be liable for any indirect,
consequential, or special damages with respect to its role as Trustee.
(f) Notwithstanding anything to the contrary contained elsewhere in
this Trust Agreement, any reference to the Plan or Plan provisions which
require knowledge or interpretation of the Plan shall impose a duty upon
the Company to communicate such knowledge or interpretation to the Trustee.
The Trustee shall have no obligation to know or interpret any portion of
the Plan and shall in no way be liable for any proper action taken contrary
to the Plan.
(g) Company and Trustee hereby each represent and warrant to the
other that it has full authority to enter into this Agreement upon the
terms and conditions hereof and that the individual executing this
Agreement on their behalf has the requisite authority to bind Company or
Trustee to this Agreement.
Section 15. Effective Date.
The effective date of this Trust Agreement shall be January 2, 1998.
CONTRAN CORPORATION BOSTON SAFE DEPOSIT AND TRUST
COMPANY
By: /s/ Steven L. Watson By: /s/ Yvonne M. Utz
------------------------ ------------------------
Steven L. Watson, Vice
President Printed Name:Yvonne M. Utz
---------------
Title: Vice President
--------------------
APPENDIX A
List of Nonqualified Deferred Compensation Plan(s)
1. Amended Deferred Compensation Agreement, dated as of October 1, 1995,
between Contran Corporation, a Delaware corporation, and Harold C. Simmons, a
resident of Dallas, Texas.
EXTENSION AGREEMENT
This extension agreement (this "Agreement") is dated as of November 7,
1997, and is among Contran Corporation, a Delaware corporation ("Contran"), the
affiliated corporations known as the "Contran Affiliates," U.S. Bank National
Association ("USB"), and Societe Generale, Southwest Agency ("SoGen").
Recitals
A. Contran, the Contran Affiliates (collectively, the "Contran Companies") and
USB and SoGen (collectively, the "Bank Group") are parties to a loan
agreement dated as of November 8, 1996 (the "1996 Loan Agreement") and
certain related notes, guaranties and security agreements (the "1996 Loan
Documents"), under which USB and SoGen provide $40 million in working
capital to the Contran Companies until the Expiry Date (November 7, 1997).
B. The parties desire to extend the Expiry Date of the 1996 Loan Documents for
an additional 364 days (to November 6, 1998). All capitalized terms that
are not defined in this Agreement are used herein as they are defined in
the 1996 Loan Agreement.
NOW, THEREFORE, for value, it is agreed that:
1. Each Contran Company represents and warrants to the Bank Group that (a) it
is in good standing under the laws of the state of its formation, (b) it
has been authorized to execute and perform its obligations under this
Agreement and the 1996 Loan Documents as extended by this Agreement, (c)
the individual executing this Agreement on its behalf has been duly
authorized to take such action, (d) the 1996 Loan Documents, as extended by
this Agreement, are enforceable against it in accordance with their
respective terms subject only to the effect of insolvency and other similar
laws affecting the rights and remedies of creditors generally, general
principles of equity whether applied by a court of law or equity, and
generally applicable rules of law, (e) the financial information provided
to the Bank Group in applying to extend the 1996 Loan Documents presents
fairly its financial position as of the date of such financial statements
and the results of its operations and changes in financial position for the
period then ending, (f) the representations and warranties made to the Bank
Group in the 1996 Loan Documents continue to be true and correct in all
material respects, and (g) the Contran Companies are not in default in any
material respect under the 1996 Loan Documents as of the date of this
Agreement.
2. The Contran Companies will continue to pay each member of the Bank Group
its percentage share of the Commitment Fee.
3. Each member of the Bank Group hereby extends the Expiry Date and,
therefore, its commitment to make Advances to the Contran Companies, and
the terms and conditions of the 1996 Loan Documents to November 6, 1998.
USB's several commitment is limited to $30 million and SoGen's several
commitment is limited to $10 million.
4. This Agreement will become effective only when each party has signed it and
faxed a copy of its signature to the other parties. Each party will
deliver manually signed counterparts of this page to Agent for distribution
to the other parties.
U.S. BANK NATIONAL ASSOCIATION CONTRAN CORPORATION
By /s/ Janice T. Thede By /s/ Bobby D. O'Brien
--------------------------- ---------------------------
Janice T. Thede Bobby D. O'Brien
Vice President Vice President & Treasurer
SOCIETE GENERALE NATIONAL CITY LINES, INC.
SOUTHWEST AGENCY
By /s/ Bobby D. O'Brien
By /s/ Richard M. Lewis ---------------------------
---------------------------
Bobby D. O'Brien
Richard M. Lewis Vice President & Treasurer
Vice President
VALHI GROUP, INC.
By /s/ Bobby D. O'Brien
---------------------------
Bobby D. O'Brien
Vice President & Treasurer
FIRST AMENDMENT OF LOAN AGREEMENT
This first amendment of loan agreement (the "First Amendment") is entered
into as of January 9, 1998, among Contran Corporation, a Delaware corporation
("Contran"), the affiliated corporations known as the "Contran Affiliates", U.S.
Bank National Association ("U.S. Bank"), and Societe Generale, Southwest Agency
("SoGen").
RECITALS
A. Contran, the Contran Affiliates (collectively, the "Contran
Companies") and U.S. Bank and SoGen (collectively, the "Bank Group") are parties
to a loan agreement dated as of November 8, 1996 (the "1996 Loan Agreement") and
certain related notes, guaranties, and security agreements (the "1996 Loan
Documents"). In addition, the Contran Companies and the Bank Group are parties
to an extension agreement dated as of November 7, 1997 (the "Extension
Agreement"), whereby the parties agreed, among other things, to extend the
Expiry Date to November 6, 1998.
B. The 1996 Loan Agreement, as modified by the Extension Agreement, is
referred to in this First Amendment as the "1996 Loan Agreement." Capitalized
terms used in this First Amendment that are not defined herein have the meaning
assigned to those terms in the 1996 Loan Agreement.
C. The Contran Companies have requested the Bank Group to modify Section
V(B)(1) of the 1996 Loan Agreement, which limits the amount of debt that may be
incurred by the Contran Companies. The Bank Group is willing to do so, subject
to the terms and conditions of this First Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Contran Companies and the Bank Group agree as
follows:
AGREEMENT
1. Each Contran Company represents and warrants to the Bank Group that
(a) it is in good standing under the laws of the state of its formation, (b) it
has been authorized to execute and perform its obligations under this First
Amendment and the 1996 Loan Documents (as modified by this First Amendment), (c)
the individual executing this First Amendment on its behalf has been duly
authorized to take such action, (d) the 1996 Loan Documents (as amended by this
First Amendment) are enforceable against it in accordance with their respective
terms, subject only to the effect of insolvency and other similar laws affecting
the rights and remedies of creditors generally, general principles of equity
whether applied by a court of law or equity, and general applicable rules of
law, (e) all financial information previously provided to the Bank Group
presents fairly its financial position as of the date of such financial
information and the results of its operations and changes in financial position
for the period in question, (f) the representations and warranties made to the
Bank Group in the 1996 Loan Documents continue to be true and correct in all
material respects, and (g) the Contran Companies are not in default in any
material respect under the 1996 Loan Documents as of the date of this First
Amendment.
2. Section V(B)(1) of the 1996 Loan Agreement hereby is amended and
restated as follows:
Additional Debt. Directly or indirectly (by borrowing, deferred purchase,
guarantee, or otherwise) incur more than $30,000,000 as a group in funded
debt in excess of that immediately available to the Contran Companies on
the date of this Agreement except for unsecured loans from the Contran
Companies to each Contran Company and/or Valhi;
3. This First Amendment will become effective only when each of the
Contran Companies and the members of the Bank Group has signed it and has sent a
copy of the signed document to the other parties to this First Amendment (which
may be accomplished by facsimile transmission). Each party to this First
Amendment will deliver manually signed counterparts of this First Amendment to
the Agent for distribution to the other parties.
4. Except as specified in paragraph 2 of this First Amendment, all of the
terms and conditions of the 1996 Loan Agreement and the 1996 Loan Documents
remain in full force and effect.
U.S. BANK NATIONAL ASSOCIATION CONTRAN CORPORATION
By /s/ Janice T. Thede By /s/ Bobby D. O'Brien
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Janice T. Thede Bobby D. O'Brien
Vice President Vice President & Treasurer
SOCIETE GENERALE, SOUTHWEST NATIONAL CITY LINES, INC.
AGENCY
By /s/ Richard M. Lewis By /s/ Bobby D. O'Brien
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Richard M. Lewis Bobby D. O'Brien
Vice President Vice President & Treasurer
VALHI GROUP, INC.
By /s/ Bobby D. O'Brien
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Bobby D. O'Brien
Vice President & Treasurer
