Exhibit 10.116
SECOND AMENDMENT TO THE TRUST AGREEMENT
FOR THE CHARLES SCHWAB
PROFIT SHARING AND EMPLOYEE STOCK OWNERSHIP PLAN
The Trust Agreement for the Charles Schwab Profit Sharing and Employee
Stock Ownership Plan ("Plan"), which was amended and restated in its entirety
effective November 1, 1990, and further amended effective January 1, 1992, is
hereby further amended effective July 1, 1992, to reflect the appointment of The
Charles Schwab Trust Company to act as successor trustee under the Plan and
Trust Agreement, and as follows:
1. Each reference to "Security Pacific National Bank" is replaced by "The
Charles Schwab Trust Company."
2. The last two sentences of Section 5.05(a) are revised to read as follows:
Investment in such Employer Securities shall be made from time to time
by a direct issue of such Employer Securities from the Employer (in the
event of Employer Securities used to fund the employee stock ownership
plan only) or by purchase through a Purchasing Agent designated by the
Trustee to effect all purchases of Employer Securities. The Purchasing
Agent shall not in any event be The Charles Schwab Corporation or any
of its affiliates or subsidiaries. The Purchasing Agent shall invest
such funds as are paid over to the Purchasing Agent from time to time
in Employer Securities at the time, in the amount, in the manner and at
the price determined by the Purchasing Agent in its sole discretion,
provided such price shall be the fair market value of such securities
on the open market. The Purchasing Agent shall hold such assets as an
agent of the Trustee and shall be a fiduciary to the Plan, but only
with respect to those assets under its management and control and only
with respect to its determinations as to the timing, price and amount
of purchases of Employer Securities and the selection of the broker,
but the Purchasing Agent shall have no discretion as to whether or not
purchases of Employer Securities shall be made. The Purchasing Agent
shall sell shares of Employer Securities at the direction of the
Trustee, but at the time, in the manner and at the price determined by
the Purchasing Agent, provided such price shall be the fair market
value of such securities on the open market. The Trustee shall instruct
the Purchasing Agent to sell shares of Employer Securities only if the
Plan Administrator has directed the Trustee to arrange for such sale
and only if such sale is previously approved by the Board of Directors
to the extent required under Section 10.01 of the Plan.
3. Section 5.05(b) is amended to read as follows:
(b) The Trustee shall pay over all contributions to the employee stock
ownership plan, and such contributions and assets of the profit sharing
plan that are to be invested in Employer Securities, to the Purchasing
Agent for investment in Employer Securities.
4. Section 5.05(c) is amended to read as follows:
Cash dividends received on any Employer Securities held as part of the
profit sharing plan shall be paid over to the Purchasing Agent and
invested as soon as practicable in additional shares of Employer
Securities. Cash dividends received on any Employer Securities
allocated to a Participant's Account and held as part of the employee
stock ownership plan shall be paid over to the Purchasing Agent and
invested as soon as practicable in additional shares of Employer
Securities. Cash dividends received on Employer Securities held in the
suspense account (e.g., unallocated shares of Employer Securities held
as part of the employee stock ownership plan) shall be used as provided
in Section 10.08 of the Plan.
5. Section 5.05(d) is amended to read as follows:
The Purchasing Agent shall invest funds awaiting investment in Employer
Securities in short-term obligations, including obligations of the
United States of America or any agency or instrumentality thereof,
trust and participation certificates, beneficial interests in any trust
and such other short-term obligations as the Purchasing Agent deems to
be appropriate for such interim investment purposes, provided however
that the Purchasing Agent may hold in cash without liability for
interest such portion of the assets under its control that in its
discretion shall be reasonable under the circumstances, pending
investments, or payment of expenses, or the distribution of benefits.
The Purchasing Agent is authorized to invest in any common, collective
or pooled fund maintained by the Purchasing Agent as provided in
Section 7.03.
6. Section 5.05(f) is amended to read as follows:
Voting or proxy or other rights with respect to Employer Securities
shall be disposed of as provided in this Section. With respect to
Employer Securities that are allocated to Participants' Accounts, each
Participant shall be entitled to direct the Purchasing Agent as to the
manner in which such Employer Securities then allocated to his Account
shall be voted. Such directions may be achieved through the use of
proxy or similar statements delivered by the Purchasing Agent to the
Participants with respect to the Employer Securities allocated to their
Accounts. The Plan Administrator shall provide any information
requested by the Purchasing Agent that is necessary or convenient in
connection with obtaining and preserving the confidentiality of the
Participants' directions. Any allocated Employer Securities with
respect to which Participants are entitled to issue directions pursuant
to the foregoing and for which such directions are not received by the
Purchasing Agent shall not be voted by the Purchasing Agent. All
unallocated Employer Securities shall be voted by the Purchasing Agent,
provided however that the Purchasing Agent shall vote such unallocated
Employer Securities in the same proportion as the shares of Employer
Securities for which Participant voting instructions have been received
as provided in the agreement between the Employer and the New York
Stock Exchange.
7. Article XI is amended by the addition of the following sections at the end:
Section 11.09 Disclosure. The Trustee is authorized to disclose such
information as is necessary to the operation and administration of the
trust fund to any of its affiliates, and to such other persons and
organizations that the Trustee determines have a legitimate business
reason for obtaining such information.
Section 11.10 Recording. The Trustee is authorized to record
conversations between itself and the Plan Administrator, an Investment
Manager, the Employer and other persons acting on behalf of the Plan.
Section 11.11 Affiliates. The Trustee is authorized to contract or make
other arrangements with The Charles Schwab Corporation and any of its
affiliates, subsidiaries, successors and assigns, and any other
organizations affiliated with, or subsidiaries of, the Trustee or
related entities, for the provision of services to the Plan and trust
fund.
Section 11.12 Trades. The Trustee is authorized to place securities
orders, settle securities trades, hold securities in custody and
perform related activities on behalf of the trust fund through or by
Charles Schwab & Co., Inc. to the extent that the Trustee may select
the broker-dealer. Trades and related activities effected through
Charles Schwab & Co., Inc. shall not be subject to fees and commissions
established by Charles Schwab & Co., Inc. Transactions effected by
Schwab shall be subject to Schwab's trading rules and policies as
modified or amended from time to time, together with the applicable
rules, regulations, customs and usages of any exchange, market,
clearing house or self-regulatory organization and the applicable
federal and state laws, rules and regulations.
Section 11.13 Mutual Funds. The Trustee is authorized to invest in
shares of regulated investment companies (or other investment vehicles)
advised by affiliates of The Charles Schwab Corporation and any of its
affiliates, subsidiaries, successors and assigns, and any other
organizations affiliated with, or subsidiaries of, the Trustee or
related entities, or by the Trustee itself.
Section 11.14 Lien. The Trustee shall have a lien on the trust fund for
compensation and for any reasonable expenses incurred by the Trustee,
including counsel, appraisal or accounting fees as provided in Section
4.04, and such amounts may be withdrawn from the trust fund if not paid
by the Employer within a reasonable time after the Trustee mails a
written billing.
Executed this 30th day of June 1992.
CHARLES SCHWAB & CO., INC.
By /s/ Charles R. Schwab
CHARLES SCHWAB TRUST COMPANY
By /s/ Harvey A. Rowen