EXHIBIT R
THIRD AMENDMENT TO TRUST AGREEMENT
This Amendment Agreement, is made as of the 30th day of November,
1999, by and between XXXXXX XXXXXXX XXXX XXXXXX & CO.., a Delaware corporation
(the "Conwany"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company (the "Trustee").
R E C I T A L S:
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WHEREAS, the Company and the Trustee are parties to a Trust
Agreement, dated as of March 5, 1991, as heretofore amended (the "Trust
Agreement"; terms used herein without definition shall have the meanings
ascribed to such terms in the Trust Agreement); and
WHEREAS, the Company and the Trustee now desire to amend the Trust
Agreement in the manner set forth herein;
NOW, THEREFORE, for good and valuable consideration, the parties
hereto hereby agree as follows:
1. Amendment to the definition of "Plan"
The first recital contained in the Trust Agreement is deleted in its
entirety and replaced with the following:
"WHEREAS, certain Managing Directors, Principals, officers, other
key employces and consultants, among others, of the Company or
certain subsidiaries thereof ("Participants") are eligible to receive
shares (the "Benefits") of Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co. common
stock, par value $0.01 per share (the "Company Stock"), pursuant to
awards of stock units under any of the following plans of Lhe
Company:
. The 1988 Equity Incentive Compensation Plan;
. The 1995 Equity Incentive Compensation Plan;
. The Employees' Equity Accumulation Plan; and
. Each other plan which the Company identifies to the Trustee in
accordance with Section 11 of this Agreement
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(as each may be amended, supplemented, replaced or extended, or any
successor plan providing for similar benefits or awards, being
hereinafter referred to collectively as the "Plan"). Copies of the
first three of which plans cited above are attached hereto as
Exhibits A, B and C, respectively, and made a part hereof; and".
2. Amendment to allow the Trust to hold shares not allocated to Plan awards
The final sentence of Section 1(a) of the Trust Agreement is deleted
and replaced in its entirety as follows:
"The Trust shall be funded only with shares of Company Stock, or
cash to purchase such shares. Shares of Company Stock contributed to
the Trust or purchased with cash so contributed shall either be
allocated to stock units awarded under the Plan ("Allocated Shares")
or be held in the Trust pending allocation to such stock units or
other equity-based awards ("Unallocated Shares"). For purposes
hereof, Unallocated Shares include shares of Company Stock held in
the Trust that were considered Allocated Shares when contributed
to, or purchased with cash held by, the Trust, but for which the
corresponding stock units awarded under the Plan have been
forfeited. In addition, the Trustee may retain up to one thousand
dollars ($1,000.00) in cash or short term instruments for payment of
expenses and liabilities of the Trust."
3. Amendment relating to the distribution of dividends
Section 1(f) of the Trust Agreement is deleted and replaced in its
entirety as follows:
"Any cash dividend paid in respect of Allocated Shares held in the
Trust shall be distributed by the Trustee to Trust Beneficiaries as
directed by the Company, and any such cash dividend paid in respect
of Unallocated Shares held in the Trust shall be paid to a
charitable, educational or similar not-for-profit foundation,
institution or other organization designated by the Company at the
time of payment (a "Designated Charity"). In no event shall any such
cash dividend be distributed to the Company. The Company shall act
as agent for the Trustee in making such distributions unless
the Trustee gives the Company 90 days notice, in writing, that the
Trustee does not want the Company to act as its agent. The Trustee
may require the Company to provide certification of its distributions
to Trust Beneficiaries in respect of Allocated Shares and other
parties in respect of Unallocatcd Shares. Any other dividend or
distribution made with respect to the shares of Company Stock held
in the Trust shall be distributed to the Trustee and delivered by
the Trustee to the Company for disposition by the Company (i) in the
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case of Allocated Shares, in accordance with the Plan and awards
granted thereunder and (ii) in the case of Unallocated Shares, to a
Designated Charity as directed by the Company at the time of
payment, but in no event shall any such dividend or distribution,
or any proceeds resulting from a sale or other disposition thereof,
be distributed to the Company."
4. Amendment relating to distribution of shares and other assets remaining in
the Trust upon termination of the Trust
A. The heading of Section 4 is amended to read "Term of the Trust
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and Payments in connection with Termination of the Trust."
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B. The second sentence of Section 4 is deleted and replaced in its
entirety as follows:
"Upon any termination of the Trust, all Unallocated Shares of
Company Stock and other assets, if any, held in the Trust shall be
distributed as directed by the Company, but in no event shall any
such shares or assets be distributed to the Company. The Company
shall direct the Trustee as to the distribution of such shares and
other assets no later than the final payment date for any stock
units to which there correspond Allocated Shares held in the
Trust."
5. Amendment to permit the Company unilaterally to designate additional plans
as falling within the definition of the "Plan"
Section 11 of the Trust Agreement is amended by adding the following
sentence at the end thereof:
"In addition to the foregoing, the Company from time to time may
unilaterally amend the definition of "Plan" set forth in the first
Whereas clause of this Agreement to include additional plans of the
Company or one of its subsidiaries which provide for awards of stock
units. The Company shall effect any such amendment by providing the
Trustee with written notice identifying the plan or plans to be
added to the definition of "Plan" and shall furnish the Trustee with
a copy of the relevant plan or plans. Following such actions by the
Company, the plan or plans so identified shall be included among the
plans which collectively constitute the "Plan" for purposes of this
Agreement, and such plan or plans shall be considered a part hereof."
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IN WITNESS WHEREOF, the Company and the Trustee have executed this
Trust Agreement as of the date first above written.
XXXXXX XXXXXXX XXXX XXXXXX & CO.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
