EXHIBIT 10.53
SECOND AMENDMENT to
INDEMNIFICATION TRUST AGREEMENT, effective as of January 27, 2002
(“Second Amendment”), by and among J. C. Penney
Company, Inc., a Delaware corporation, J. C. Penney Corporation,
Inc., a Delaware corporation (herein collectively called the
“Company”), and JPMorgan Chase Bank (a successor to
Chemical Bank) a bank organized and existing under the laws of the
State of New York, as trustee (“Trustee”).
J. C. Penney Corporation, Inc.
(formerly known as J. C. Penney Company, Inc.) and Trustee have
heretofore executed an Indemnification Trust Agreement, dated as of
July 30, 1986, as amended March 30, 1987 (“Trust
Agreement”), for the benefit of the Indemnitees (as defined
on page 1 of the Trust Agreement). Upon the approval of the
Representatives (as defined in Section 4(a) of the Trust
Agreement), the Company and the Trustee now wish to amend the
sections of the Trust Agreement described below to reflect changes
in the organizational structure and names of both the Company and
the Trustee.
NOW, THEREFORE, the Company and the
Trustee agree that:
1. The title page to the Trust
Agreement shall be amended and restated in its entirety as
follows:
INDEMNIFICATION TRUST
AGREEMENT
by and among
J. C. PENNEY COMPANY,
INC.,
J. C. PENNEY CORPORATION,
INC.
and
JPMORGAN CHASE BANK
2. The first paragraph page 1 of the
Trust Agreement shall be amended and restated in its entirety as
follows:
INDEMNIFICATION TRUST AGREEMENT
(“Trust Agreement”) dated as of July 30, 1986, as
amended March 30, 1987, and amended effective January 27,
2002, by and among J. C. Penney Company, Inc., a Delaware
corporation, J. C. Penney Corporation, Inc., a Delaware company and
wholly-owned subsidiary of J. C. Penney Company, Inc. (formerly
known as J. C. Penney Company, Inc.) (herein collectively called
the “Company”), and JPMorgan Chase Bank, a bank
organized and existing under the laws of the State of New York
(formerly known as Chemical Bank), as trustee
(“Trustee”), for the benefit of the Indemnitees (as
hereinafter defined), which Indemnitees shall be the beneficiaries
of the trust created hereby (“Trust”).
3. Section 6(a) of the Trust Agreement
shall be amended and restated in its entirety as
follows:
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(a)
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For purposes of
this Trust Agreement, “Change in Control” means a
change in control of J. C. Penney Company, Inc. of a nature that
would be required to be reported in response to Item 6(e) of
Schedule 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of
1934 (“Act”), whether or not J. C. Penney Company, Inc.
is then subject to such reporting requirement; provided, however,
that without limitation, such a Change in Control shall be deemed
to have occurred (irrespective of the applicability of the initial
clause of this definition) if (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Act, but
excluding any employee benefit plan or employee stock plan of the
Company or any subsidiary of the Company, or any entity organized,
appointed, established or holding securities of the Company with
voting power for or pursuant to the terms of any such plan) is or
becomes the “beneficial owner” (as defined in Rule
13d03 under the Act), directly or indirectly, of securities of the
Company representing 35% or more of the combined voting power of
the Company’s then outstanding securities without the prior
approval of at least two-thirds of the members of the Board of
Directors of J. C. Penney Company, Inc. in office immediately prior
to such person attaining such interest; (ii) J. C. Penney
Company, Inc. is party to a merger, consolidation, sale of assets
or other reorganization, or proxy contest, as a consequence of
which members of the Board of Directors of J. C. Penney Company,
Inc. in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors of J. C.
Penney Company, Inc. thereafter; or (iii) during any period of
two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of J. C. Penney Company,
Inc. (including for this purpose any new director whose election or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period)
cease for any reason to constitute at least a majority of the Board
of Directors of J. C. Penney Company, Inc.
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4. The addresses of the Company and the Trustee
in Section 9(i) of the Trust Agreement shall be amended and
restated in their entiret
