EXHIBIT 10r-3
FIRST AMENDMENT
TO THE
BELLSOUTH CORPORATION
TRUST UNDER EXECUTIVE BENEFIT PLAN(S)
THIS AGREEMENT is made this 1st day of November, 2003 by and between
BellSouth Corporation ("Company"), a Georgia corporation, and The Northern Trust
Company, an Illinois corporation of Chicago, Illinois ("Trustee");
WHEREAS, Company and Bankers Trust Company, a New York corporation,
("Bankers Trust") executed the BellSouth Corporation Trust Under Executive
Benefit Plan(s) (the "Trust Agreement") dated the 23rd day of May, 1996; and
WHEREAS, Company desires to appoint The Northern Trust Company as
successor trustee to Bankers Trust pursuant to Section 11 of the Trust
Agreement; and
WHEREAS, Company and the Trustee desire to amend the Trust Agreement
pursuant to Section 12 of the Trust Agreement;
NOW, THEREFORE, the sections of the Trust Agreement set forth below are
amended as follows, but all other sections of the Trust Agreement shall remain
in full force and effect.
1.
All references to Bankers Trust are hereby amended to refer to The
Northern Trust Company.
2.
Section 2(d)(4) is hereby amended by inserting "or the Independent
Fiduciary (as defined below) if appointed" between words "Following a Change of
Control, Trustee," and "in its sole discretion" at the beginning of the second
sentence. All subsequent references to the "Trustee" in Section 2(d)(4) are
hereby amended by substituting the word "Trustee" with the words "Trustee or the
Independent Fiduciary if appointed."
3.
Sections 2(d)(5),(6) and (7) are hereby amended by substituting
"Trustee" with "Trustee or the Independent Fiduciary if appointed" in the third
sentence of section 2(d)(5), the second sentence of section 2(d)(6), and the
first sentence of section 2(d)(7).
4.
The following is hereby inserted at the end of section 3(b)(2):
"Trustee may appoint an independent accounting, consulting or
law firm to make any determination of solvency required by the
Trustee under this Section 3. In such event Trustee may
conclusively rely upon the determination by such firm and
shall be responsible only for the prudent selection of such
firm. Trustee shall require that such firm specifically
acknowledge in its opinion or other determination that
Company, participants, beneficiaries and creditors may rely on
such opinion or other determination as third party
beneficiaries."
5.
Section 5(f) is hereby amended by adding "or the Independent Fiduciary
if appointed" immediately after the words "provisions under this Trust
Agreement, Trustee" in the first sentence therein.
6.
Sections 5(h) and 5A are hereby amended by adding "or the Independent
Fiduciary if appointed" immediately after all references to "Trustee" therein.
7.
New sections 8(g) and 8(h) are hereby inserted immediately after
section 8(f) as follows:
"(g) Following a Change in Control, Trustee may appoint an
entity or a person as an independent fiduciary ("Independent
Fiduciary") to act as fiduciary under the Plans and this
agreement and to exercise such responsibilities of the Trustee
set forth in sections 2(d)(4), (5), (6), and (7) and sections
5(f) and (h) and section 5A pursuant to a written agreement
between such entity or person and the Trustee. The Independent
Fiduciary shall certify to the Trustee the names of all
persons authorized to act on its behalf. In such event, the
Trustee may conclusively rely upon the determinations of and
directions from the Independent Fiduciary and shall be
responsible only for the prudent selection and retention of
such entity or person to act as Independent Fiduciary
hereunder. All fees and expenses of such Independent Fiduciary
shall be paid from the assets of the Trust unless paid by the
Company.
(h) For purposes of Section 3, the phrase "actual knowledge of
the Trustee" shall mean the actual knowledge of an officer or
employee of the Corporate & Institutional Services trust
administration segment of the Trustee and shall not include
actual knowledge of personnel in the Corporate and
Institutional Services banking segment or other separate
segments of the Trustee."
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IN WITNESS WHEREOF, Company and Trustee have caused this Amendment to
be executed and their respective corporate seals to be affixed and attested by
their respective corporate officers on the day and year first written above.
BELLSOUTH CORPORATION
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------
Its: Treasurer
ATTEST
/s/ Xxxxx X. Xxxx
-------------------------
Its: Senior Corp. Counsel and Ass't Corp. Secretary
(CORPORATE SEAL)
The undersigned, Xxxxx X. Xxxx, does hereby certify that he/she is the
duly elected, qualified and acting Assistant Corporate Secretary of BellSouth
Corporation ("Company") and further certifies that the person whose signature
appears above is a duly elected, qualified and acting officer of the Company
with full power and authority to execute this Trust Amendment on behalf of the
Company and to take such other actions and execute such other documents as may
be necessary to effectuate this Trust Amendment.
/s/ Xxxxx X. Xxxx
-------------------------
Senior Corporate Counsel and
Assistant Corporate Secretary
BellSouth Corporation
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Its: Vice President
ATTEST:
/s/ Xxxxx X. Xxxxx
-------------------------
Its: Assistant Secretary
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