AMENDMENT 2007-1 CHARMING SHOPPES, INC. SUPPLEMENTAL BENEFIT TRUST AGREEMENT FOR THE CHARMING SHOPPES, INC. SUPPLEMENT RETIREMENT PLAN
EXHIBIT
10.2.29
AMENDMENT
2007-1
CHARMING
SHOPPES, INC.
FOR
THE CHARMING SHOPPES, INC. SUPPLEMENT RETIREMENT PLAN
AMENDMENT
2007-1, dated as of January 25, 2007, by Charming Shoppes, Inc. (the
“Company”).
The
Company has entered into the Charming Shoppes, Inc. Supplemental Benefit Trust
Agreement dated as of September 17, 2003 (the “Trust Agreement”) with the Bryn
Mawr Trust Company (the Trustee”) for the purpose of providing a funding source
for the Charming Shoppes, Inc. Supplemental Retirement Plan (the
“Plan”).
Pursuant
to Section 12.1 of the Trust Agreement, the Company may, from time to time,
amend or modify the provisions of the Trust Agreement.
The
Company desires to amend the Trust Agreement to change the definition of “Change
of Control” to be consistent with the terms of the Plan and to provide for the
investment of the assets of the trust in life insurance policies.
NOW,
THEREFORE, the Trust Agreement is amended as follows:
| 1. |
A
new Section 5.1(d) shall be added to read as
follows:
|
(d)
Subject to subsection (a), the Trustee may invest all or a portion of the Trust
Fund in one or more life insurance policies or contracts. If any portion of
the
Trust Fund is invested in a life insurance policy or contract on the life of
a
Participant, the Trustee shall hold legal title to the policy or contract and
shall serve as custodian. Prior to a Change of Control, the Company is
specifically authorized to act as agent of the Trustee with respect to the
administration of the insurance policies or contracts, and in that regard the
Company may serve as signatory for the Trustee to execute insurance policy
or
contract applications and death claims, as well as to transfer assets between
or
among the separate accounts available within each insurance policy or contract,
and shall advise the Trustee, on at least an annual basis, of all actions taken
pursuant to this authority. Further, the Company reserves the right to designate
the address of record for all notices involving such insurance policies or
contracts and their administration and shall provide the Trustee, on at least
an
annual basis, an accounting of all actions occurring with respect to each such
insurance policy or contract. Prior to the closing of any transaction that
would
result in a Change of Control, the Company shall provide the Trustee with
written instructions pursuant to Section 7.2 hereof as to the person who will
serve as agent for the Trustee with respect to any insurance policies or
contracts following a Change of Control and such instructions shall not
thereafter be amended by the Company. Following a Change of Control, the Trustee
may substitute or replace the agent for good cause shown. The Company shall
have
the right at any time, and from time to time, in its sole discretion, to
substitute cash or cash equivalents equal to the fair market value of any assets
held by the Trust.
| 2. |
Section
6.1(k) is amended in its entirety to read as
follows:
|
|
(k)
|
To
exercise all powers conferred on the Trustee by local law, unless
otherwise specifically provided herein, including the right to borrow
against an insurance policy or contract for purposes of the Plan
or to
distribute the proceeds to the Company subject to the provisions
of
Section 4.7; provided, however, that if an insurance policy or contract
is
held as an asset of the Trust, the Trustee shall have no power to
name a
beneficiary of the policy or contract other than the Trust, to assign
the
policy or contract (as distinct from conversion of the policy or
contract
to a different form) other than to a successor trustee, or to loan
to any
person other than the Company the proceeds of any borrowing against
such
policy or contract; provided, further, that the Trustee may make
an IRC §
1035 exchange of any such policy or contract with the consent of
the
insured as to insurability.
|
| 3. |
Section
16.1 is amended by adding a sentence to follow the first sentence,
to read
as follows:
|
Such
contribution shall also include any life insurance policies or contracts
purchased to be used to provide benefits under any of the Plans, and the Company
shall cause the ownership of such policies or contracts to be transferred to
the
Trustee in its capacity as trustee under this Trust Agreement.
| 4. |
Section
16.3 is amended to read as follows:
|
16.3 “Change
of Control” means and shall be deemed to have occurred if:
|
(a)
|
any
Person, other than the Company or a Related Party, acquires directly
or
indirectly the Beneficial Ownership of any Voting Security and immediately
after such acquisition such Person has, directly or indirectly, the
Beneficial Ownership of Voting Securities representing 20 percent
or more
of the total voting power of all the then-outstanding Voting Securities;
or
|
|
(b)
|
those
individuals who as of the day after the Company’s annual shareholders
meeting in the calendar year prior to the determination constitute
the
Board or who thereafter are elected to the Board and whose election,
or
nomination for election, to the Board was approved by a vote of at
least
two-thirds (2/3) of the directors then still in office who either
were
directors as of the day after the Company’s annual shareholders meeting in
the calendar year prior to the determination or whose election or
nomination for election was previously so approved, cease for any
reason
to constitute a majority of the members of the Board ;
or
|
|
(c)
|
consummation
of a merger, consolidation, recapitalization or reorganization of
the
Company, a reverse stock split of outstanding Voting Securities,
or an
acquisition of securities or assets by the Company (a “Transaction”),
other than a Transaction which would result in the holders of Voting
Securities having at least 80 percent of the total voting power
represented by the Voting Securities outstanding immediately prior
thereto
continuing to hold Voting Securities or voting securities of the
surviving
entity having at least 60 percent of the total voting power represented
by
the Voting Securities or the voting securities of such surviving
entity
outstanding immediately after such transaction and in or as a result
of
which the voting rights of each Voting Security relative to the voting
rights of all other Voting Securities are not altered;
or
|
|
(d)
|
the
complete liquidation of the Company or the sale or disposition by
the
Company of all or substantially all of the Company’s assets other than any
such transaction which would result in Related Parties owning or
acquiring
more than 50 percent of the assets owned by the Company immediately
prior
to the transaction.
|
IN
WITNESS WHEREOF, and as evidence of the adoption of the amendment set forth
herein, this instrument has been executed by the duly authorized officer of
the
Company as of this ________ day of ____________________, 2007.
CHARMING
SHOPPES,
INC.
By:
______________________
Xxxx
X.
Xxxxxxx
Executive
Vice
President
Accepted:
By:
_________________________________
Bryn
Mawr
Trust Company, as Trustee
