Exhibit 10.3
FIRST AMENDMENT
TO THE
UNIVERSAL LEAF TOBACCO COMPANY, INCORPORATED
BENEFIT RESTORATION PLAN TRUST
WHEREAS, effective June 25, 1997, UNIVERSAL LEAF TOBACCO COMPANY,
INCORPORATED, a Virginia corporation (the "Company") established the Universal
Leaf Tobacco Company, Incorporated Benefit Restoration Plan Trust (the "Trust")
in conjunction with the agreement of WACHOVIA BANK, N.A., a national banking
association (the "Trustee"), to serve as the Trust's initial trustee;
WHEREAS, Section 13 of the Trust provides for the amendment of the
Trust by the Company and the Trustee;
WHEREAS, the Company and the Trustee have agreed to modify the terms of
Section 6 of the Trust governing investment authority to provide, among other
things, that prior to a Change of Control, as defined under the Trust, the
Company shall direct the investment of the assets of the Trust;
NOW THEREFORE, effective January 12, 1999, Section 6 of the Trust is
amended and restated in its entirety as follows:
Section 6. Investment Authority
(a) The Trustee shall not be liable in discharging its duties hereunder,
including without limitations its duty to invest and reinvest the
assets of the Trust (collectively, the "Trust Fund"), if it acts for
the exclusive benefit of the participants and their beneficiaries, in
good faith and as a prudent person would act in accomplishing a similar
task and in accordance with the terms of this Trust Agreement and any
applicable federal or state laws, rules or regulations.
(b) Subject to investment guidelines agreed to in writing from time to time
by the Company and the Trustee prior to a Change of Control, the
Trustee shall have the power in investing and reinvesting the Trust
Fund in its sole discretion:
(1) To invest and reinvest in any readily marketable common and
preferred stocks, bonds, notes, debentures (including
convertible stocks and securities but not including any stock
or security of the Trustee other than a de minimis amount held
in a collective or mutual fund), certificates of deposit or
demand or time deposits (including any such deposits with the
Trustee) and shares of investment companies and mutual funds,
without being limited to the classes or property in which the
Trustees are authorized to invest by any law or any rule of
court of any state and without regard to the proportion any
such property may bear to the entire amount of the Trust Fund;
(2) To invest and reinvest all or any portion of the Trust Fund
collectively through the medium of any proprietary mutual fund
that may be established and maintained by the Trustee;
(3) To commingle for investment purposes all or any portion of the
Trust Fund with assets of any other similar trust or trusts
established by the Company with the Trustee for the purpose of
safeguarding deferred compensation or retirement income
benefits of its employees and/or directors;
(4) To retain any property at any time received by the Trustee;
(5) To sell or exchange any property held by it at public or
private sale, for cash or on credit, to grant and exercise
options for the purchase or exchange thereof, to exercise all
conversion or subscription rights pertaining to any such
property and to enter into any covenant or agreement to
purchase any property in the future;
(6) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan
relating to property held by it and to consent to or oppose
any such plan or any actions thereunder or any contract,
lease, mortgage, purchase, sale or other action by any person;
(7) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary
power thereto, and to pay part of the expenses and
compensation thereof any assessments levied with respect to
any such property to deposited;
(8) To extend the time of payment of any obligation held by it;
(9) To hold uninvested any moneys received by it, without
liability for interest thereon, but only in anticipation of
payments due for investments, reinvestments, expenses or
disbursements;
(10) To exercise all voting or other rights with respect to any
property held by it and to grant proxies, discretionary or
otherwise;
(11) For the purposes of the Trust, to borrow money from others, to
issue its promissory note or notes therefor, and to secure the
repayment thereof by pledging any property held by it;
(12) To employ suitable contractors and counsel, who may be counsel
to the Company or to the Trustee, and to pay their reasonable
expenses and compensation from the Trust Fund to the extent
not paid by the Company;
(13) To register investment in its own name or in the name of a
nominee; to hold any investment in bearer form; and to combine
certificates representing securities with certificates of the
same issue held by it in other fiduciary capacities or to
deposit or to arrange for the deposit of such securities with
any depository, even though, when so deposited, such
securities may be held in the name of the nominee of such
depository with other securities deposited therewith by other
persons, or to deposit or to arrange for the deposit of any
securities issued or guaranteed by the United States
government, or any agency or instrumentality thereof,
including securities evidenced by book entries rather than by
certificates, with the United States Department of the
Treasury or a Federal Reserve Bank, even though, when so
deposited, such securities may not be held separate from
securities deposited therein by other persons; provided,
however, that no securities held in the Trust Fund shall be
deposited with the United States Department of the Treasury or
a Federal Reserve Bank or other depository in the same account
as any individual property of the Trustee, and provided,
further, that the books and records of the Trustee shall at
all times show that all such securities are part of the Trust
Fund;
(14) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust,
respectively, to commence or defend suits or legal proceedings
to protect any interest of the Trust, and to represent the
Trust in all suits or legal proceedings in any court or before
any other body or tribunal; provided, however, that the
Trustee shall not be required to take any such action unless
it shall have been indemnified by the Company to its
reasonable satisfaction against liability or expenses it might
incur therefrom;
(15) To hold and retain policies of life insurance, annuity
contracts, and other property of any kind which policies are
contributed to the Trust by the Company or any subsidiary of
the Company or are purchased by the Trustee provided, however,
that the exercise by the Trustee of any incidents of ownership
under any contract shall, prior to a Change of Control, be
subject to the direction of the Company. After a Change of
Control, the Trustee shall have all such rights;
(16) To hold any other class of assets which may be contributed by
the Company and that is deemed reasonable by the Trustee,
unless expressly prohibited herein;
(17) To loan any securities at any time held by it to brokers or
dealers upon such security as may be deemed advisable, and
during the terms of any such loan to permit the loaned
securities to be transferred into the name of and voted by the
borrower or others; and
(18) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or desirable
for the protection of the Trust.
(c) Prior to a Change of Control, the Company shall have the right, subject
to this Section to direct the Trustee with respect to investments.
(1) The Company may at any time direct the Trustee to segregate
all or a portion of the Trust Fund in a separate investment
account or accounts and may appoint one or more investment
managers and/or an investment committee established by the
Company to direct the investment and reinvestment of each such
investment account or accounts. In such event, the Company
shall notify the Trustee of the appointment of each such
investment manager and/or investment committee. No such
investment manager shall be related, directly or indirectly,
to the Company. No members of the investment committee may be
employees of the Company.
(2) Thereafter, the Trustee shall make every sale or investment
with respect to such investment account as directed in writing
by the investment manager or investment committee. It shall be
the duty of the Trustee to act strictly in accordance with
each direction. The Trustee shall be under no duty to question
any such direction of the investment manager or investment
committee, to review any securities or other property held in
such investment account or accounts acquired by it pursuant to
such directions or to make any recommendations to the
investment managers or investment committee with respect to
such securities or other property.
(3) Notwithstanding the foregoing, the Trustee, without obtaining
prior approval or direction from an investment manager or
investment committee, shall invest cash balances held by it
from time to time in short term cash equivalents including,
but not limited to, through the medium of any short term
common, collective or commingled trust fund established and
maintained by the Trustee subject to the instrument
establishing such trust fund, U.S. Treasury Bills, commercial
paper (including such forms of commercial paper as may be
available through the Trustee's Trust Department),
certificates of deposit (including certificates issued by the
Trustee in its separate corporate capacity), and similar type
securities, with a maturity not to exceed one year; and
furthermore, sell such short term investments as may be
necessary to carry out the instructions of an investment
manager or investment committee regarding more permanent type
investment and directed distributions.
(4) The Trustee shall neither be liable nor responsible for any
loss resulting to the Trust Fund by reason of any sale or
purchase of an investment directed by an investment manager or
investment committee nor by reason of the failure to take any
action with respect to any investment which was acquired
pursuant to any such direction in the absence of further
directions of such investment manager or investment committee.
(5) Notwithstanding anything in this Agreement to the contrary,
the Trustee shall be indemnified and saved harmless by the
Company from and against any and all personal liability to
which the Trustee may be subjected by carrying out any
directions of an investment manager or investment committee
issued pursuant hereto or for failure to act in the absence of
directions of the investment manager or investment committee
including all expenses reasonably incurred in its defense in
the event the Company fails to provide such defense; provided,
however, the Trustee shall not be so indemnified if it
participants knowingly in, or knowingly undertakes to conceal,
an act or omission of an investment manager or investment
committee, having actual knowledge that such act or omission
is a breach of a fiduciary duty; provided further, however,
that the Trustee shall not be deemed to have knowingly
participated in or knowingly undertaken to conceal an act or
omission of an investment manager or investment committee with
knowledge that such act or omission was a breach of fiduciary
duty by merely complying with directions of an investment
manager or investment committee or for failure to act in the
absence of directions of an investment manager or investment
committee. The Trustee may rely upon any order, certificate,
notice, direction or other documentary confirmation purporting
to have been issued by the investment manager or investment
committee which the Trustee believes to be genuine and to have
been issued by the investment manager or investment committee.
The Trustee shall not be charged with knowledge of the
termination of the appointment of any investment manager or
investment committee until it received written notice thereon
from the Company.
(d) Following a Change of Control, the Trustee shall have the sole and
absolute discretion in the management of the Trust assets and shall
have all the powers set forth under Section 6(b). In investing the
Trust assets, the Trustee shall consider:
(1) the needs of the Plan;
(2) the need for matching of the Trust assets with the liabilities
of the Plan; and
(3) the duty of the Trustee to act solely in the best interests of the
participants and their beneficiaries.
(e) The Trustee shall have the right, in its sole discretion, to delegate
its investment responsibility to an investment manager who may be an
affiliate of the Trustee. In the event the Trustee shall exercise this
right, the Trustee shall remain, at all times responsible for the acts
of an investment manager. The Trustee shall have the right to purchase
an insurance policy or an annuity to fund the benefits of the
Arrangements.
(f) The Company shall have the right at any time, and from time to time in
its sole discretion, to substitute assets of equal fair market value
for any asset held by the Trust Fund. This right is exercisable by the
Company in a nonfiduciary capacity without the approval or consent of
any person in a fiduciary capacity.
The remaining provisions of the Trust are ratified and remain in full
force and effect.
UNIVERSAL LEAF TOBACCO COMPANY,
INCORPORATED
By: ___________________________
Title: ____________________________
Date: _____________________________
WACHOVIA BANK, N.A.
By: ___________________________
Title: ____________________________
Date: _____________________________