EXHIBIT 10u-3
SECOND AMENDMENT
TO THE
BELLSOUTH TELECOMMUNICATIONS, INC.
TRUST UNDER BOARD OF DIRECTORS BENEFIT PLAN(S)
THIS SECOND AMENDMENT to the BellSouth Telecommunications, Inc. Trust
Under Board of Directors Benefit Plan(s) (the "Trust Agreement") is made this
17th day of December, 2003, by and between BellSouth Corporation, a Georgia
corporation ("BellSouth"), BellSouth Telecommunications, Inc., a Georgia
corporation wholly-owned by BellSouth ("Company"), and The Northern Trust
Company, an Illinois corporation of Chicago, Illinois ("Trustee"):
WHEREAS, BellSouth, Company and Bankers Trust Company, a New York
Corporation ("Bankers Trust"), first executed the Trust Agreement on May 23,
1996; and
WHEREAS, BellSouth and Company on November 1, 2003, appointed Trustee
as successor trustee to Bankers Trust Company; and
WHEREAS, BellSouth, Company and Trustee, effective November 1, 2003,
executed a First Amendment to the Trust Agreement; and
WHEREAS, BellSouth, Company and Trustee now desire to amend further
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.
Section 5(c) is hereby amended by deleting the last sentence therein,
and inserting at the end of Section 5(c) the following:
"Furthermore, in addition to such reservation of
discretionary authority, prior to a Change of Control,
BellSouth may appoint one or more investment managers
("Investment Managers") to manage all or a portion of the
assets of the Trust. BellSouth shall notify Trustee of each
appointment of an Investment Manager (and of any subsequent
changes in any such appointment), in writing, and shall
direct each Investment Manager to certify to Trustee the
names of all persons authorized to act on its behalf. Trustee
may continue to rely upon such instruments until otherwise
notified in writing by BellSouth or the Investment Manager,
as the case may be. Trustee may
conclusively rely upon the determinations of and directions
from BellSouth acting pursuant to the authority reserved in,
or an Investment Manager appointed pursuant to, subsection
(c) of this Section 5. All fees and expenses of an Investment
Manager shall be paid from the assets of the Trust unless
paid by BellSouth or Company. Notwithstanding anything to the
contrary contained herein, following a Change of Control,
BellSouth may not reserve discretionary authority or appoint
an Investment Manager for the management and control of any
assets of the Trust and any prior reservation or appointment
then in effect shall be nullified."
2.
Section 5(d) is hereby deleted in its entirety and replaced with the
following:
"(d) Trustee shall follow the directions of BellSouth or of
an Investment Manager regarding the investment and
reinvestment of Trust assets (or such portion thereof as may
be under management by BellSouth or an Investment Manager
pursuant to subsection (c) of this Section 5), and shall be
under no duty or obligation to review or to question any
direction of BellSouth pursuant to the authority reserved in,
or of an Investment Manager appointed pursuant to, subsection
(c) of this Section 5, or to review any investment to be
acquired, held or disposed of pursuant to such directions, or
to make recommendations with respect to the disposition or
continued retention of any such investment and Trustee shall
have no authority to take any action or to refrain from
taking any action with respect to any such assets unless and
until it is directed to do so by BellSouth pursuant to
authority reserved in, or an Investment Manager appointed
pursuant to, subsection (c) of this Section 5.
Notwithstanding anything to the contrary in this Trust
Agreement, BellSouth shall indemnify Trustee and hold it
harmless from any liability or expense (including reasonable
attorneys' fees) resulting from acts or omissions of Trustee
taken in reliance on directions or the absence of directions
from BellSouth pursuant to authority reserved in, or an
Investment Manager appointed pursuant to, subsection (c) of
this Section 5 or otherwise in connection with Trustee's
administration of the Trust consistent with subsection (c) of
Section 5."
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3.
Section 5(e) is hereby amended by substituting "BellSouth pursuant to
authority reserved in subsection (c) of this Section 5" with "BellSouth
pursuant to authority reserved in, or an Investment Manager appointed pursuant
to, subsection (c) of this Section 5" therein.
4.
Section 5(f) is hereby amended by substituting "BellSouth acting
pursuant to authority reserved under subsection (c) of this Section 5" with
"BellSouth acting pursuant to authority reserved in, or an Investment Manager
appointed pursuant to, subsection (c) of this Section 5" in the introductory
language preceding clause (1) of Section 5(f).
5.
Section 5(g) is hereby amended by adding at the end thereof the
following:
"Notwithstanding the foregoing, the Trustee shall vote any proxies for
such shares of Company Stock held pursuant to this Section 5(g) in its
discretion."
IN WITNESS WHEREOF, BellSouth, Company and Trustee have caused this
Amendment to be executed and their respective corporate seals to be affixed and
attested by their corporate officers on the day and year first written above.
BELLSOUTH CORPORATION
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------------
Its: Chairman, Trust Asset Management Committee
ATTEST:
/s/ Xxxxx X. Xxxx
---------------------------------------------------------
Its: Senior Corporate Counsel & Asst. Corporate Secretary
(CORPORATE SEAL)
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The undersigned, Xxxxx X. Xxxx, does hereby certify that he/she is the
duly elected, qualified and acting Assistant Corporate Secretary of BellSouth
Corporation ("BellSouth") and further certifies that the person whose signature
appears above is a duly elected, qualified and acting officer of BellSouth with
full power and authority to execute this Trust Amendment on behalf of BellSouth
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
BELLSOUTH TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxxx Xxxx
----------------------------------------
Its: President
ATTEST:
/s/ Xxxxx Xxxxxx Irvine
---------------------------------
Its: Assistant Secretary
(CORPORATE SEAL)
The undersigned, Xxxxx Xxxxxx Irvine, does hereby certify that he/she
is the duly elected, qualified and acting Assistant Secretary of BellSouth
Telecommunications, Inc. ("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 Xxxxxx Irvine
--------------------------------
Assistant Secretary
BellSouth Telecommunications, Inc.
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THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Its: Vice President
--------------------------------
ATTEST:
/s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------
Its: Assistant Secretary
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