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EXHIBIT 4.2
ADDENDUM TO
KANEB SERVICES, INC.
SAVINGS INVESTMENT TRUST AGREEMENT
This ADDENDUM is entered into this 22nd day of March 1996, by and between KANEB
SERVICES, INC., a corporation (the "Company"), and THE XXXXXXX XXXXXX TRUST
COMPANY (the "Trustee") effective for the 1st day of April, 1996.
ARTICLE 1
INVESTMENTS
1.1 (a) Except as provided below, the Committee shall have all
power over and responsibility for the management, disposition, and investment
of the Trust assets, and the Trustee shall comply with proper written
directions of the Committee concerning those assets. The Committee shall not
issue directions in violation of the terms of the Plan and Trust or prohibited
by the fiduciary responsibility rules of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). Except to the extent required by
ERISA or otherwise provided in this Addendum, the Trustee shall have no duty or
responsibility to review, initiate action, or make recommendations regarding
Trust assets and shall retain assets until directed in writing by the Committee
to dispose of them.
(b) As permitted under the Plan, each Participant and/or
beneficiary may have investment power over the account maintained for him or
her, and may direct the investment and reinvestment of assets of the account
among the options authorized by the Committee. To the extent provided under
ERISA section 404(c), the Trustee shall not be liable for any loss, or by
reason of any breach, which results from such Participant's or beneficiary's
exercise of control. If a Participant who has investment authority under the
terms of the plan fails to provide such directions, the Committee shall direct
the investment of the Participant's accounts. The Committee shall maintain
records showing the interest of each Participant and/or beneficiary in the
Trust Fund. The Trustee shall have no duty or responsibility to review or make
recommendations regarding investments made at the direction of the Committee or
Participant and shall be required to act only upon receipt of proper written
directions.
1.2 The Trustee shall not be responsible for proper
diversification of the assets of the Trust Fund. The Committee or the person
to whom such responsibility has been properly delegated under the requirements
of ERISA shall be responsible for the funding policy, for diversification of
assets held in trust for the Plan, and for compliance of the Trust Fund with
statutory limitations on the amount of investment in securities or other
property of the Company or its affiliated companies.
1.3 In its administration of the Trust Fund, the Trustee shall
deliver to the Committee, or the person or persons identified by the Committee,
proxies and powers of attorney and related informational material, for any
shares or other property (other than Company Stock) held in the Trust. The
Committee shall have responsibility for voting such shares, by proxy or in
person, except to the extent such responsibility is delegated to another
person, under the terms of the
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Plan or Trust Agreement, in which case such persons shall have such
responsibility. The Trustee may use agents to effect such delivery to the
Committee or the person or persons identified by the Committee. In no event
shall the Trustee be responsible for the voting of shares of securities held in
the Trust (other than Company Stock) or for ascertaining or monitoring whether,
or how, proxies are voted or whether the proper number of proxies is received.
1.4 (a) Voting rights with respect to shares of Company Stock held
in the Trust Fund shall be voted by the Trustee in such manner as may be
determined by the respective Participant, with respect to all matters requiring
shareholder approval. With respect to shares of Company Stock in the Trust
Fund which are allocated to Participants who fail to give directions to the
Trustee, such shares shall be voted by the Trustee based on the voting
directions of those Participants who issued directions with respect to Company
Stock allocated to their Accounts. The number of non-voted shares to be voted
in a particular manner shall be determined by multiplying the total number of
such shares by a fraction, the numerator of which is the number of allocated
shares directed to be voted in such manner, and the denominator of which is the
total number of allocated shares directed to be voted in any manner with
respect to the matter at issue. Participants for whom no proxies are received
will be disregarded for this purpose. The Plan Committee may establish such
rules and guidelines as it deems necessary to properly effect the provision of
this section.
(b) Notwithstanding any other provision in the Plan and
Trust to the contrary, the Trustee shall, with respect to all Company Stock
held in the Trust Fund, accept or reject the terms of any tender offer and,
accordingly, tender Company Stock held by the Trustee in the Trust Fund in
accordance with the terms and provisions of any tender offer, or not tender
such Company Stock, as directed by the respective Participants. With respect
to shares of Company Stock which are allocated to Participants who have not
given directions, the tender or exchange rights of such shares of Company Stock
shall be exercised based on the tender or exercise directions of those
Participants who issued directions with respect to the Company Stock allocated
to their Accounts. The Trustee shall determine these tender or exercise
directions in the same manner as voting directions are determined as provided
under the above section. The Plan Committee may establish such rules and
guidelines as it deems appropriate to properly effect the provisions of this
section.
ARTICLE 2
USE OF AFFILIATES
2.1 Trustee is authorized to contract or make other arrangements
with The Xxxxxxx Xxxxxx Corporation, Xxxxxxx Xxxxxx & Co., Inc., their
affiliates and subsidiaries, successors and assigns, and any other
organizations affiliated with or subsidiaries of Trustee or related entities,
for the provision of services to the Trust Fund or Plan, except where such
arrangements are prohibited by law or regulation.
2.2 Trustee is authorized to place securities orders, settle
securities trades, hold securities in custody and other related activities on
behalf of the Trust Fund through or by Xxxxxxx Xxxxxx & Co., Inc. whenever
possible unless the Authorized Person specifically instructs the use of another
Broker. Trades and related activities conducted through the Broker
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shall be subject to fees and commissions established by the Broker, which may
be paid from the Trust Fund or netted from the proceeds of trades.
Trades shall not be executed through Xxxxxxx Xxxxxx & Co., Inc. unless
the Committee and the Authorized Person have received disclosure concerning the
relationship of Xxxxxxx Xxxxxx & Co., Inc. to Trustee, and the fees and
commissions which may be paid to The Xxxxxxx Xxxxxx Corporation, Xxxxxxx Xxxxxx
& Co., Inc., Trustee and any affiliate or subsidiary of any of them as a result
of using Xxxxxxx Xxxxxx & Co., Inc. to execute trades or for other services.
Trustee is authorized to disclose such information as is necessary to
the operation and administration of the Trust Fund to The Xxxxxxx Xxxxxx
Corporation or any of its affiliates, and to such other persons or
organizations that Trustee determines have a legitimate business purpose for
obtaining such information.
2.3 At the direction of the Company, Trustee may purchase shares
of regulated investment companies (or other investment vehicles) advised by The
Xxxxxxx Xxxxxx Corporation, Xxxxxxx Xxxxxx & Co., Inc. or Trustee, or any
affiliate or subsidiary of any of them ("Schwab Funds"), except to the extent
that such investment is prohibited by law or regulation. Schwab Fund shares
may not be purchased for or held by the Trust Fund unless the Committee has
received disclosure concerning the relationship of The Xxxxxxx Xxxxxx
Corporation, Xxxxxxx Xxxxxx & Co., Inc., Trustee, and any affiliate or
subsidiary of any of them, to the Schwab Funds, and any fees which may be paid
to such entities.
ARTICLE 3
RESIGNATION OR REMOVAL OF TRUSTEE
3.1 If either party has given notice of Trustee removal or
resignation as provided under the Trust Agreement, and upon the expiration of
the advance notice period no other successor Trustee has been appointed and has
accepted such appointment, this provision shall serve as (i) notice of
appointment of the Chairman of the Plan Committee as Trustee and (ii) as
acceptance by that person of that appointment.
ARTICLE 4
MISCELLANEOUS
4.1 The Trust will be administered in the State of California, and
its validity, construction, and all rights hereunder shall be governed by ERISA
and, to the extent not preempted, by the laws of California. If any provisions
of this Agreement shall be invalid or unenforceable, the remaining provisions
shall continue to be fully effective.
4.2 Any dispute under the Plan or Trust involving the Company and
Trustee shall be resolved by submission of the issue to a member of the
American Arbitration Association who is chosen by the Company and the Trustee.
If the Company and the Trustee cannot agree on such a choice, each shall
nominate a member of the American Arbitration Association, and the two
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nominees will then select an arbitrator. Expenses of the arbitration shall be
paid as decided upon by the arbitrator.
4.3 Trustee and Xxxxxxx Xxxxxx & Co., Inc. are authorized to tape
record conversations between Trustee or Xxxxxxx Xxxxxx & Co., Inc. and persons
acting on behalf of the Plan or a Participant in order to verify data on
transactions.
4.4 This Addendum is incorporated into and is a part of the Plan
and Trust. Anything in any other part of the Plan or Trust that is inconsistent
with this Addendum is overridden, and in the case of such conflict, the terms
of this Addendum shall govern.
IN WITNESS WHEREOF, KANEB SERVICES, INC. and THE XXXXXXX XXXXXX TRUST COMPANY,
have caused this Addendum to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
KANEB SERVICES, INC.,
Company
By: /s/ XXXXXX X. XXXXXXXXX
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Printed Name: Xxxxxx X. Xxxxxxxxx
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Title: Vice President, Secretary & Treasurer
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THE XXXXXXX XXXXXX TRUST COMPANY,
Trustee
By: /s/ XXXX XXXXX
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Printed Name: Xxxx Xxxxx
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Title: Officer
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