SECOND AMENDMENT
TO
CNG NONEMPLOYEE DIRECTORS' FEE PLAN TRUST AGREEMENT
This Agreement made this 1st day of October, 1996 by and
between Connecticut Natural Gas Corporation of Hartford,
Connecticut ("CNG") and Xxxxxx Fiduciary Trust Company, a
Massachusetts trust company having its principal office in
Boston, Massachusetts ("Trustee");
W I T N E S S E T H :
WHEREAS, by Agreement dated September 28, 1995, CNG and
Fleet Bank, N.A. entered into the CNG Nonemployee Directors' Fee
Plan Trust Agreement (the "Agreement"); and
WHEREAS, Fleet Bank, N.A. has been removed as Trustee and
Xxxxxx Fiduciary Trust Company has been appointed successor
Trustee and has accepted said position of trust; and
WHEREAS, CNG and the Trustee wish to amend the Agreement in
the particulars set forth below; and
WHEREAS, the right to amend the Agreement has been reserved
in Paragraph 10.1 thereof; and
WHEREAS, the Agreement was previously amended by a First
Amendment thereto;
NOW, THEREFORE, CNG and the Trustee hereby agreed to amend
the Agreement as follows:
1. The following sentence is added to Section 1.1 at the
end thereof:
"The appointment of Xxxxxx Fiduciary Trust Company as
Trustee is effective October 1, 1996."
2. Section 2.1 is amended to read as follows:
"2.1 The Trustee shall maintain records relating to
the Fund and its investment, and shall also maintain
Participant records contemplated by the Plan if CNG and the
Trustee so agree. If the Trustee maintains such Participant
records, they shall be made available promptly upon request
to CNG. CNG shall also perform such other duties and
responsibilities as CNG determines are necessary or
advisable to achieve the objectives of this Agreement."
3. Section 5.2 is amended to read as follows:
"5.2 (a) The Trustee shall invest and reinvest the
assets of the Trust in shares of any open-end registered
investment company for which Xxxxxx Investment Management,
Inc. serves as investment advisor or for which Xxxxxx Mutual
Funds Corp. is the principal underwriter, as directed by
CNG. Except as provided in (b) below, all rights associated
with assets of the Trust shall be exercised by the Trustee
or the person designated by the Trustee, and shall in no
event be exercisable by or rest with Plan participants.
(b) Any voting rights with respect to Trust
assets will be exercised in accordance with directions from
CNG and dividend rights with respect to the Trust assets
will be invested pursuant to directions from CNG.
(c) Except to the extent that such powers may be
limited by applicable regulatory authority, or as otherwise
directed by CNG in writing, the Trustee shall have the
following powers and rights, and shall be subject to the
following duties with respect to the Trust, in addition to
those provided elsewhere in the Trust or by law:
(1) To receive and hold all contributions
paid to it under the Plan; provided, however, that it
shall have no duty to require any contributions to be
made to it.
(2) To retain in cash or cash equivalents
either all or a portion of the Trust, either to await
investment or to meet contemplated payments of Plan
benefits, and to deposit funds (in savings accounts,
certificates of deposit or checking accounts) in any
financial institution supervised by the United States
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or a State, including, if the Trustee is a bank, its
own banking department or the banking department of an
affiliate, if such deposits bear a reasonable rate of
interest.
(3) To invest in units of any common trust
fund or money market or daily interest fund operated or
approved by the Trustee.
(4) To make payments from the Trust to such
persons, in such manner, at such times and in such
amounts as CNG shall direct, without inquiring as to
whether a payee is entitled to the payment or as to
whether the payment is proper, to the extent such
payment is made in good faith without actual notice or
knowledge of the impropriety of such payment.
(5) As directed by CNG, to compromise,
contest, arbitrate, settle or abandon claims and
demands.
(6) As directed by CNG, to begin, maintain
or defend any litigation necessary or appropriate in
connection with the investment, reinvestment and
administration of the Trust.
(7) To hold securities in its name as
Trustee or in the name of its nominee or nominees, or
in such other form as it determines best, with or
without disclosing the trust relationship, and to
execute such documents as are necessary to accomplish
the foregoing; provided, however, that the records of
the Trustee shall indicate the actual ownership of such
securities or other property.
(8) To make, execute, acknowledge and
deliver any and all instruments that may be necessary
or appropriate to carry out the powers herein granted.
(9) To require, before making any payment,
such release or other document from any taxing
authority or such indemnity from the intended payee as
the Trustee deems necessary.
(d) The 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 the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request
or approval given by CNG which is contemplated by, and in
conformity with, the terms of the Plan or the Trust and is
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given in writing by CNG. In the event of a dispute between
CNG and a party, the Trustee may apply to a court of
competent jurisdiction to resolve the dispute.
(e) If the Trustee undertakes or defends any
litigation arising in connection with this Trust, CNG agrees
to indemnify the Trustee against the Trustee's costs,
expenses and liabilities (including, without limitation,
attorney's fees and expenses) relating thereto and to be
primarily liable for such payments. If CNG does not pay
such costs, expenses and liabilities within 30 days of being
billed for such amounts, the Trustee may obtain payment from
the Trust.
(f) The Trustee may consult with legal counsel
(who may also be counsel for CNG) with respect to any of its
duties or obligations hereunder.
(g) The 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, and pay their reasonable
expenses and compensation from the Trust to the extent not
paid by CNG.
(h) The Trustee shall have, without exclusion,
all powers conferred on trustees by applicable law, unless
expressly provided otherwise herein.
(i) Notwithstanding any powers granted to the
Trustee pursuant to this Trust Agreement or to applicable
law, the Trustee shall not have any power that could give
the 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.
(j) The Trustee may invest in securities
(including stock or rights to acquire stock) or obligations
issued by CNG, including CNG Common Stock, as directed by
CNG. Except as provided in (b) above, all rights associated
with assets of the Trust shall be exercised by the Trustee
or the person designated by the Trustee, and shall in no
event be exercisable by or rest with Plan Participants.
(k) CNG shall have the right at any time, 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 referred to in the preceding sentence is
exercisable by CNG in a non-fiduciary capacity without the
approval or consent of any person in a fiduciary capacity."
4. The second sentence of Section 8.5 is deleted.
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5. Section 12.1 is amended by the deletion of the word
"Connecticut" and the substitution of "Massachusetts" in lieu
thereof.
6. Except as hereinabove modified and amended, the
Agreement shall remain in full force and effect.
7. This amendment is effective October 1, 1996.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed this ____ day of _______________,
1996.
ATTEST: CONNECTICUT NATURAL GAS CORPORATION
___________________________ By_________________________________
Its
ATTEST: XXXXXX FIDUCIARY TRUST COMPANY
___________________________ By_________________________________
Its
STATE OF CONNECTICUT )
: ss. 1996
COUNTY OF )
Personally appeared ____________________________________,
______________________ of Connecticut Natural Gas Corporation as
aforesaid, signer of the foregoing instrument, and acknowledged
the same to be ______ free act and deed as such
_______________________ and the free act and deed of said
corporation, before me.
Commissioner of the Superior Court
Notary Public
My Commission Expires:
5
________ OF ____________ )
: ss. 1996
COUNTY OF )
Personally appeared ____________________________________,
______________________ of Xxxxxx Fiduciary Trust Company, as
aforesaid, signer of the foregoing instrument, and acknowledged
the same to be ______ free act and deed as such
_______________________ and the free act and deed of said
corporation, before me.
Commissioner of the Superior Court
Notary Public
My Commission Expires:
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