Exhibit 10.10
AMENDMENT NO. 1
to the
AMENDED AND RESTATED TRUST AGREEMENT
by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
and
STATE STREET BANK AND TRUST COMPANY
This AMENDMENT NO. 1 (this "Amendment"), made as of the 1st
day of January 2002, amends the AMENDED AND RESTATED TRUST AGREEMENT (the
"Agreement"), made as of the 30th day of November 2000, by and between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO., a Delaware corporation (the "Company"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company (in its individual
capacity, "State Street" and, as trustee under the Agreement, the "Trustee").
Capitalized terms used in this Amendment without definition have
the meanings assigned thereto in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties
do hereby agree to amend the Agreement as follows:
1. Amend Definition of the "Plan". Pursuant to Section 11 of
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the Agreement, the definition of "Plan" set forth in the first Whereas clause of
the Agreement is amended to include the Company's Directors' Equity Accumulation
Plan ("DECAP"). A copy of DECAP as amended through the date of this Amendment
has been furnished to the Trustee. As of the date of this Amendment, DECAP shall
be included among the plans which collectively constitute the "Plan" for
purposes of the Agreement. The term "Participants" as used in the Agreement
shall be understood to include individuals who receive awards of stock units
pursuant to DECAP.
2. DECAP Portfolio. The Company shall from time to time
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identify to the Trustee all Allocated Shares that correspond to stock units
awarded under DECAP. Such shares are referred to as the "DECAP Portfolio."
3. Dividend Reinvestment for DECAP Portfolio.
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(a) Section 1(f) is amended by adding the following sentence to
the beginning thereof:
"This paragraph (f) shall apply to all shares of Stock held in
the Trust except shares included in the DECAP Portfolio."
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(b) Section 1 is further amended by adding a new paragraph (g)
thereto as follows:
"(g) Any cash dividend paid in respect of shares of Stock
included in the DECAP Portfolio shall, as promptly as possible
after receipt thereof by the Trustee, be paid by the Trustee to
the Company in consideration for the purchase of a number of
additional shares of Stock determined by dividing (i) the
aggregate cash dividend paid on all shares of Stock included in
the DECAP Portfolio on the dividend record date by (ii) the Fair
Market Value, as defined in DECAP, of a share of Stock on the
dividend record date. The Company shall be responsible for
calculating Fair Market Value in accordance with the preceding
sentence and the number of shares to be purchased by the Trustee.
All shares of Stock purchased by the Trustee pursuant to this
paragraph (g) will be included in the DECAP Portfolio and will be
allocated to participants in DECAP in accordance with the Plan."
4 Voting. Section 7(g) is amended in its entirety to read as
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follows:
"(g) Until such time as the Company amends the Trust to provide
otherwise, the Trustee shall have no discretion or authority to
vote Stock held in the Trust by the Trustee on any matter
presented for a vote of the stockholders of the Company except in
accordance with the provisions of this paragraph (g). The Trustee
shall solicit instructions from each Trust Beneficiary who is an
active employee (an "Active Employee") of the Company or any of
its subsidiaries or affiliates or who has been awarded stock
units for which corresponding shares of Stock are held in the
DECAP Portfolio (a "DECAP Participant"), as indicated by the
Company, as to the manner in which the shares of Stock held in
the Trust corresponding to stock units awarded to such Trust
Beneficiary under the Plans shall be voted. The Trustee shall
follow any such instructions that are timely received with
respect to such shares of Stock and shall vote or tender all
Stock held in the Trust, other than shares of Stock held in the
DECAP Portfolio, as to which no proper instructions are received
(whether corresponding to stock units awarded to Active Employees
or not) in proportion to Stock for which proper instructions have
been received from Active Employees. The Trustee shall not vote
or tender any shares of Stock held in the DECAP Portfolio as to
which no proper instructions are received.
The Trustee shall communicate or cause to be communicated to each
Trust Beneficiary the provisions of this Agreement relating to
the right of such Trust Beneficiary, while an Active Employee or
a DECAP Participant, to direct the Trustee with respect to the
voting of shares of Stock corresponding to such Trust
Beneficiary's stock units. Such communication shall also discuss
the consequences of an
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instruction to abstain or withhold authority to vote and any
failure to timely instruct the Trustee."
5 Savings Clause. Except as modified herein, the Agreement
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remains in full force and effect.
IN WITNESS WHEREOF, the Company and State Street have executed
this Amendment as of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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