Exhibit 10.116
SECOND AMENDMENT TO TRUST AGREEMENT
FOR THE XXXXXXX XXXXXX
PROFIT SHARING AND EMPLOYEE STOCK OWNERSHIP PLAN
The Trust Agreement for the Xxxxxxx Xxxxxx Profit Sharing and Employee
Stock Ownership Plan ("Plan"), which was amended and restated in its entirety
effective November 1, 1990, and further amended effective January 1, 1992, is
hereby further amended effective July 1, 1992, to reflect the appointment of The
Xxxxxxx Xxxxxx Trust Company to act as successor trustee under the Plan and
Trust Agreement, and as follows:
1. Each reference to "Security Pacific National Bank" is replaced by "The
Xxxxxxx Xxxxxx Trust Company."
2. The last two sentences of Section 5.05(a) are revised to read as follows:
Investment in such employer Securities shall be made from time to time by a
direct issue of such Employer Securities from the Employer (in the event of
Employer Securities used to fund the employee stock ownership plan only) or
by purchase through a Purchasing Agent designated by the Trustee to effect
all purchases of Employer Securities. The Purchasing Agent shall not in any
event be The Xxxxxxx Xxxxxx Corporation or any of its affiliates or
subsidiaries. The Purchasing Agent shall invest such funds as are paid over
to the Purchasing Agent from time to time in Employer Securities at the
time, in the amount, in the manner and at the price determined by the
Purchasing Agent in its sole discretion, provided such price shall be the
fair market value of such securities on the open market. The Purchasing
Agent shall hold such assets as an agent of the Trustee and shall be a
fiduciary to the Plan, but only with respect to those assets under its
management and control and only with respect to its determinations as to
the timing, price and amount of purchases of Employer Securities and the
selection of the broker, but the Purchasing Agent shall have no discretion
as to whether or not purchases of Employer Securities shall be made. The
Purchasing Agent shall sell shares of Employer Securities at a the
direction of the Trustee, but at the time, in the manner and at the price
determined by the Purchasing Agent, provided such price shall be the fair
market value of such securities on the open market. The Trustee shall
instruct the Purchasing Agent to sell shares of Employer Securities only if
the Plan Administrator has directed the Trustee to arrange for such sale
and only if such sale is previously approved by the Board of Directors to
the extent required under Section 10.01 of the plan.
3. Section 5.05(b) is amended to read as follows:
(b) The Trustee shall pay over all contributions to the employee stock
ownership plan, and such contributions and assets of the profit sharing
plan that are to be invested in Employer Securities, to the Purchasing
Agent for investment in Employer Securities.
4. Section 5.05(c) is amended to read as follows:
Cash dividends received on any Employer Securities held as part of the
profit sharing plan shall be paid over the Purchasing Agent and invested as
soon as practicable in additional shares of Employer Securities. Cash
dividends received on any Employer Securities allocated to a Participant's
Account and held as part of the employee stock ownership plan shall be paid
over the Purchasing Agent and invested as soon as practicable in additional
shares of Employer Securities. Cash dividends received on Employer
Securities held in the suspense account (e.g., unallocated shares of
Employer Securities held as part of the employee stock ownership plan)
shall be used as provided in Section 10.08 of the Plan.
5. Section 5.05(d) is amended to read as follows:
The Purchasing Agent shall invest funds awaiting investment in Employer
Securities in short-term obligations, including obligations of the United
States of America or any agency or instrumentality thereof, trust and
participation certificates, beneficial interests in any trust and such
other short-term obligations as the Purchasing Agent deems to be
appropriate for such interim investment purposes, provided however that the
portion of the assets under its control that in its discretion shall be
reasonable under the circumstances, pending investments, or payment of
expenses, or the distribution of benefits. The Purchasing Agent is
authorized to invest in any common, collective or pooled fund maintained by
the Purchasing Agent as provided in Section 7.03.
6. Section 5.05(f) is amended to read as follows:
Voting or proxy or other rights with respect to Employer Securities shall
be disposed of as provided in this Section. With respect to Employer
Securities that are allocated to Participants Accounts, each Participant
shall be entitled to direct the Purchasing Agent as to the manner in which
such employer Securities then allocated to his Account shall be voted. Such
directions may be achieved through the use of proxy or similar statements
delivered by the Purchasing Agent to the Participants with respect to the
Employer Securities allocated to their Accounts. The Plan Administrator
shall provide any information requested by the Purchasing Agent that is
necessary or convenient in connection with obtaining and preserving the
confidentiality of the Participants' directions. Any allocated Employer
Securities with respect to which Participants are entitled to issue
directions pursuant to the foregoing and for which such directions are not
received by the Purchasing Agent shall not be voted by the Purchasing
Agent. All unallocated employer Securities shall be voted by the Purchasing
Agent, provided however that the Purchasing Agent shall vote such
unallocated Employer Securities in the same proportion as the shares of
Employer Securities for which Participant voting instructions have been
received as provided in the agreement between the Employer and the New York
Stock Exchange.
7. Article XI is amended by the addition of the following sections at the end:
Section 11.09 Disclosure. The Trustee is authorized to disclose such
information as is necessary to the operation and administration of the
trust fund to any of its affiliates and to such other persons and
organizations that the Trustee determines have a legitimate business reason
for obtaining such information.
Section 11.10 Recording. The Trustee is authorized to record conversations
between itself and the Plan Administrator, an Investment Manger, the
Employer and other persons acting on behalf of the Plan.
Section 11.11 Affiliates. The Trustee is authorized to contract or make
other arrangements with The Xxxxxxx Xxxxxx Corporation and any of its
affiliates, subsidiaries, successors and assigns, and any other
organizations affiliated with or subsidiaries of, the Trustee or related
entities, for the provision of services to the Plan and trust fund.
Section 11.12 Trades. The Trustee is authorized to place securities orders,
settle securities trades, hold securities in custody and perform related
activities on behalf of the trust fund through or by Xxxxxxx Xxxxxx & Co.,
Inc. to the extent that the Trustee may select the broker-dealer. Trades
and related activities effected through Xxxxxxx Xxxxxx & Co., Inc. shall
not be subject to fees and commissions established by Xxxxxxx Xxxxxx & Co.,
Inc. Transactions effected by Schwab shall be subject to Xxxxxx'x trading
rules and polices as modified or amended from time to time, together with
the applicable rules, regulations, customs and usages of any exchange,
marked, clearing house or self-regulatory organization and the applicable
federal and state laws, rules and regulations.
Section 11.13 Mutual Funds. The Trustee is authorized to invest in shares
of regulated investment companies (or other investment vehicles) advised by
affiliates of The Xxxxxxx Xxxxxx Corporation and any of its affiliates,
subsidiaries, successors and assigns, and any other organization affiliated
with, or subsidiaries of, the Trustee or related entitles, or by Trustee
itself.
Section 11.14 Lien. The Trustee shall have a lien on the trust fund for
compensation and for any reasonable expenses incurred by the Trustee,
including counsel, appraisal or accounting fees as provided in Section
4.04, and such amounts may be withdrawn from the trust fund if not paid by
the Employer within a reasonable time after the Trustee mails a written
billing.
Executed this 30th day of June 1992.
XXXXXXX XXXXXX & CO., INC.
By /S/
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Xxxxxxx X. Xxxxxx
XXXXXXX XXXXXX TRUST COMPANY
By /S/
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Xxxxxx X. Xxxxx
