Exhibit Number (10)(ii)
To 3/31/98 Form 10-Q
THIRD AMENDMENT
TO
THE NORTHERN TRUST COMPANY
EMPLOYEE STOCK OWNERSHIP TRUST
THIS AGREEMENT is made as of the 2nd day of January 1998 by and between THE
NORTHERN TRUST COMPANY, an Illinois state bank of Chicago, Illinois (the
"Company"), and U.S. TRUST COMPANY OF CALIFORNIA, N.A., as trustee (the
"Trustee").
WHEREAS, on January 2, 1998, the Trustee became successor trustee under the
THE NORTHERN TRUST COMPANY EMPLOYEE STOCK OWNERSHIP TRUST agreement dated the
26th day of January, 1988; and
WHEREAS, the Company and the Trustee desire to amend the Trust pursuant to
Section 7.1 to reflect recent changes in the law and other agreed upon
revisions.
NOW, THEREFORE, the sections of the Trust set forth below are amended as
follows, but all other sections of the Trust shall remain in full force and
effect:
1. Section 4.1 is hereby amended by adding a new second sentence to read
as follows
Subject to the provisions of the Plan, the Trustee is expressly authorized
to hold 100% of the assets of the Trust Fund in shares of Company Stock.
2. The third sentence of Section 4.3(a) is amended in its entirety to read
as follows:
Upon timely receipt of such directions, the Trustee shall on each such
matter vote as directed the number of shares (including fractional shares) of
Company Stock allocated to such Participant's Account, and the Trustee shall
have no discretion in such matter, except to the extent such directions are
contrary to ERISA.
3. The last sentence of Section 4.3(a) is amended in its entirety to read
as follows:
The Trustee shall vote allocated shares for which it has not received
direction and unallocated shares of Company Stock in the same proportion as
directed shares are voted, provided that Participants (or Beneficiaries) have
been informed that they are named fiduciaries with respect to those undirected
and unallocated shares and that their votes will be applied proportionately, and
except to the extent such directions are contrary to ERISA.
4. The first sentence of Section 4.3(b)(ii) is amended in its entirety to
read as follows:
All Company Stock held by the Trustee in Accounts shall be tendered or not
tendered by the Trustee in accordance with directions it receives from
Participants (or Beneficiaries), except to the extent such directions are
contrary to ERISA.
5. Section 4.3(b)(iii) is amended in its entirety to read as follows:
The Trustee shall not tender Company Stock allocated to Accounts with
respect to which directions by Participants (or Beneficiaries) are not received,
provided that Participants (or Beneficiaries) have been informed that failure to
provide directions will constitute a direction not to tender, or Company Stock
held by the Trustee that is not allocated to Accounts, except as otherwise
provided in accordance with ERISA.
6. The first and second sentences of Section 6.1 are amended in their
entirety to read as follows:
The Trustee may at any time resign upon 30 days prior written notice to the
Company. The Trustee may be removed by the Company upon 30 days prior written
notice to the Trustee.
7. The last sentence of Section 6.3 is amended in its entirety to ready as
follows:
Except to the extent, if any, otherwise provided by ERISA, no successor
Trustee shall be liable for any act or omission which occurred prior to the time
it became a Trustee.
8. A new Section 8.7 shall be added to read as follows:
8.7 Indemnification.
(a) The Company and its successors shall indemnify and hold harmless
the Trustee from all loss or liability (including expenses and reasonable
attorneys' fees) to which the Trustee may be subject by reason of its execution
of its duties under this Trust Agreement, or by reason of any acts taken in good
faith in accordance with directions, or acts omitted in good faith due to
absence of directions, from the Committee unless such loss or liability is due
to the Trustee's negligence or willful misconduct. The Trustee is entitled to
collect on the indemnity provided by this Section 8.7 only from the Company, and
is not entitled to any direct or indirect indemnity payment from assets of the
Trust Fund.
(b) In the event that the Trustee is named as a defendant in a
lawsuit or proceeding involving the Plan or the Trust Fund, the Trustee shall be
entitled to receive on a current basis the indemnity payments provided for in
this Section. If, however, the final judgment or determination entered in the
lawsuit or proceeding holds or finds that the Trustee is guilty of negligence or
willful misconduct with respect to one or more counts alleged against it, the
Trustee shall immediately refund the portion of the indemnity payments that are
reasonably allocable to the defense of those counts with respect to which the
Trustee has been found to have committed acts of negligence or willful
misconduct.
IN WITNESS WHEREOF, the Company and the 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.
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its: Senior Vice President
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ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:
U.S. TRUST OF COMPANY OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
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ATTEST:
/s/ Dominica ▇▇▇▇▇▇▇▇
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Dominica ▇▇▇▇▇▇▇▇
Its:
