Exhibit 4.3
THE NORTHERN TRUST COMPANY
MASTER RETIREMENT SAVINGS TRUST
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THIS AGREEMENT is made effective as of the 21 day of December, 1994,
between THE NORTHERN TRUST COMPANY, an Illinois corporation of Chicago, Illinois
herein referred to as the "Company", and THE NORTHERN TRUST COMPANY, an Illinois
corporation of Chicago, Illinois, as Trustee, and constitutes a restatement into
a trust agreement known as the THE NORTHERN TRUST COMPANY MASTER RETIREMENT
SAVINGS TRUST agreement of the The Northern Trust Company Thrift Incentive Plan
Trust which was heretofore made by the Company and its Subsidiaries and under
which the Trustee is accepting appointment as successor trustee.
With respect to each Plan for which this agreement is adopted by the
Company or a Subsidiary as the funding medium, the Company shall appoint the
Trustee as successor under the trust agreement which is the predecessor funding
medium for the Plan, shall direct the Trustee as successor under that trust
agreement to add the assets held thereunder to the assets of the Trust Fund and
shall appoint the Administrative Committee as the fiduciary which has the
responsibility for administering the Plan and the Investment Committee as the
fiduciary which has the responsibility for Plan investments.
The Trust Fund shall consist of all assets held by the Trustee as of the
date of this agreement or hereafter acquired by the Trustee as trustee or
successor trustee under any other trust agreement made by the Company or by a
Subsidiary in connection with a Plan for which this agreement is adopted as the
funding medium, all investments and reinvestments thereof and all additions
thereto by way of contributions, earnings and increments, and shall be held upon
the following terms:
ARTICLE ONE: DEFINITIONS
For the purposes of this agreement:
1.1 "Administrative Committee" means the Employee Benefit Administrative
Committee as constituted from time to time which has the responsibility for
administering the Plan and shall be deemed for purposes of ERISA to be the Plan
administrator and the named fiduciary for Plan administration;
1.2 "Beneficiary" means a person designated to receive a benefit under a
Plan after the death of a Participant;
1.3 "Code" means the Internal Revenue Code of 1986, as amended;
1.4 "Company" means THE NORTHERN TRUST COMPANY and any corporation which
is the successor thereto;
1.5 "Company Stock" means common stock of the Company;
1.6 "Custodial Agent" means one or more persons or entities designated by
the Investment Committee to maintain custody of assets of a Separate Investment
Account pursuant to 3.1(c);
1.7 "ERISA" means the Employee Retirement Income Security Act of 1974 as
in effect from time to time and the regulations issued thereunder;
1.8 "Investment Adviser" means an Investment Manager or an Investment
Trustee to whom the Investment Committee has delegated investment responsibility
for a Separate Account or the Investment Committee with respect to any assets
for which the Investment Committee has investment responsibility;
1.9 "Investment Committee" means the Employee Benefit Administrative
Committee as constituted from time to time which has the responsibility for
allocating the assets of the Trust Fund among the Separate Accounts and any
Trustee Investment Accounts, for monitoring the diversification of the
investments of the Trust Fund, for determining the propriety of investment of
the Trust Fund in foreign securities and of maintaining the custody of foreign
investments abroad, for assuring that the Plan does not violate any provisions
of ERISA limiting the acquisition or holding of "employer securities" or
"employer real property" and for the appointment and removal of Investment
Advisers and shall be deemed for purposes of ERISA to be named fiduciary for
Plan investments;
1.10 "Investment Fund" shall mean each of the Investment Funds designated
by the Investment Committee pursuant to ARTICLE FIVE; any of such Investment
Funds may be composed of one or more Separate Accounts and Trustee Investment
Accounts designated by the Investment Committee;
1.11 "Investment Manager" means an investment manager registered as an
investment advisor under the Investment Advisers Act of 1940, a bank as defined
in that Act or an insurance company qualified to manage, acquire or dispose of
any asset of the Trust Fund, which is appointed by the Investment Committee to
manage a Separate Investment Account; but the Trustee shall have no
responsibility to determine whether a person or entity acting as an Investment
Adviser meets or continues to meet this definition;
1.12 "Investment Trustee" means the trustee appointed by the Investment
Committee to manage a Separate Investment Trust Account;
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1.13 "Participant" means a person who is an employee or former employee of
the Company or of a Subsidiary and who is or was actually participating in the
Plan;
1.14 "Plan" means the The Northern Trust Company Thrift Incentive Plan and
any separate savings plan for employees of the Company or of a Subsidiary for
which this agreement has been adopted as the funding medium;
1.15 "Plan Account" means the interest of each Plan in the Trust Fund;
1.16 "Separate Account" means a Separate Investment Account, a Separate
Investment Trust Account or a Separate Insurance Contract Account;
1.17 "Separate Insurance Contract Account" means assets of the Trust Fund
allocated by the Investment Committee to a Separate Account for investment in
insurance contracts directed by the Investment Committee:
1.18 "Separate Investment Account" means assets of the Trust Fund
allocated by the Investment Committee to a Separate Account to be managed by an
Investment Manager or the Investment Committee;
1.19 "Separate Investment Trust Account" means assets of the Trust Fund
allocated by the Investment Committee to a Separate Account to be managed by an
Investment Trustee;
1.20 "Subsidiary" means a subsidiary or affiliate of the Company;
1.21 "Subtrust" means assets of a Separate Investment Account which are
held by a Subtrustee pursuant to an agreement which the Investment Committee has
approved and directed the Trustee to enter into;
1.22 "Subtrustee" means the trustee appointed by the Investment Committee
to act as trustee of a Subtrust;
1.23 "Trust Fund" means all assets subject to this agreement;
1.24 "Trustee" means THE NORTHERN TRUST COMPANY and any successor to it as
trustee or trustees of the Trust Fund under this agreement; and
1.25 "Trustee Investment Account" means assets of the Trust Fund for which
investment responsibility has been allocated by the Investment Committee to the
Trustee with the written consent of the Trustee.
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ARTICLE TWO: VALUATION AND ALLOCATION
The Trustee shall hold the Trust Fund as a commingled fund or commingled
funds in which each separate Plan shall be deemed to have a proportionate
undivided interest in the fund or funds in which it participates, except that
each fund or asset identified by the Administrative Committee as allocable to a
particular Plan Account, herein referred to as an "identified fund" or
"identified asset", and income, appreciation or depreciation and expenses
attributable to a particular Plan Account or to an identified asset thereof,
shall be allocated or charged to that Plan Account. Contributions shall be
designated by the Administrative Committee as allocable, and distributions shall
be designated by the Administrative Committee as chargeable, to a particular
Plan Account and shall be so allocated or charged. Upon the direction of the
Administrative Committee the Trustee shall periodically determine the value of
each Plan Account on such basis as the Trustee and the Administrative Committee
shall from time to time agree (considering the fair market value of the assets
initially received from the predecessor trustee or the Company with respect to
the Plan and subsequent contributions and distributions, net income, net
appreciation or depreciation and expenses attributable to the Plan) and shall
render a statement thereof to the Administrative Committee within 120 days after
each valuation date.
ARTICLE THREE: DISTRIBUTIONS
The Trustee shall make distributions from the Trust Fund to such persons,
in such amounts (but not exceeding the then value of the Plan Account to which
the distribution is chargeable), at such times and in such manner as the
Administrative Committee or its designee shall from time to time direct pursuant
to a separate Benefit Payment Agency Agreement executed by the Company, the
Administrative Committee and the Trustee. The Trustee shall have no
responsibility to ascertain whether any direction received by the Trustee from
the Administrative Committee or its designee in accordance with the preceding
sentence is proper and in compliance with the terms of the Plan or to see to the
application of any distribution. The Trustee shall not be liable for any
distribution made in good faith without actual notice or knowledge of the
changed condition or status of any recipient. If any distribution made by the
Trustee is returned unclaimed, the Trustee shall notify the Administrative
Committee or its designee and shall dispose of the distribution as the
Administrative Committee or its designee shall direct. The Trustee shall have no
obligation to search for or ascertain the whereabouts of any payee of benefits
of the Trust Fund.
Notwithstanding the foregoing, the Administrative Committee may make
distributions from the Trust Fund through a commercial banking account in a
federally insured banking institution (including the Trustee) established by the
Administrative Committee for such purpose after written notice to the Trustee
that the commercial banking account has been so established. Upon such written
notice, the Administrative Committee shall have the responsibility to assure
that any such commercial banking
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account is established and maintained in accordance with ERISA and is properly
insured. The Trustee shall make such deposits from the Trust Fund to the
commercial banking account as the Administrative Committee or its designee may
from time to time direct. The Trustee shall have no responsibility to account
for funds held in or disbursed from any such commercial banking account, or to
prepare any informational returns for tax purposes as to distributions made
therefrom.
ARTICLE FOUR: SEPARATE ACCOUNTS AND INVESTMENT ADVISERS
The Trust Fund shall consist of one or more Separate Accounts and, with the
Trustee's written consent, one or more Trustee Investment Accounts. All Separate
Accounts and any Trustee Investment Accounts shall be established by the Trustee
at the direction of the Investment Committee. The Investment Committee shall
designate assets of the Trust Fund to be allocated to each Separate Account and
each Trustee Investment Account and shall direct the Trustee with respect to any
transfer of assets between Separate Accounts or between a Separate Account and a
Trustee Investment Account; provided that no asset shall be allocated or
transferred to the Trustee Investment Account without the Trustee's written
consent. The Investment Committee shall have investment responsibility for any
assets of the Trust Fund not otherwise allocated to a Separate Account or
Trustee Investment Account, and such assets shall comprise a Separate Investment
Account for which the Investment Committee serves as Investment Adviser. The
following provisions shall apply to the Separate Accounts:
4.1 With respect to each Separate Investment Account, the Investment
Committee shall appoint an Investment Adviser, who shall acknowledge by a
writing delivered to the Investment Committee and to the Trustee that the
Investment Adviser is a fiduciary with respect to the assets allocated thereto.
The Trustee shall act with respect to assets allocated to a Separate Investment
Account only as directed by the Investment Adviser. The Investment Committee
may direct that any or all of the assets of a Separate Investment Account be
held by a Subtrustee. The Trustee shall have custody of and custodial
responsibility for all assets of the Trust Fund held in a Separate Investment
Account except as otherwise provided in this agreement or as follows:
(a) The Subtrustee of a Subtrust shall have custody of and custodial
responsibility for any assets of a Separate Investment Account allocated to it
by the Investment Committee;
(b) The trustee of a collective or group trust fund (including without
limitation an Investment Manager or its bank affiliate) shall have custody of
and custodial responsibility for any assets of a Separate Investment Account
invested in such collective or group trust fund; and
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(c) The Investment Committee may direct in writing that the custody of
additional assets of such Separate Investment Account (other than those referred
to in paragraphs (a) and (b) of this Section 4.1) be maintained with a Custodial
Agent. In such event, the Investment Committee shall approve, and direct the
Trustee to enter into, a custody agreement with the Custodial Agent (which
custody agreement may authorize the Custodial Agent to maintain custody of such
assets with one or more subagents, including a broker or dealer registered under
the Securities Exchange Act of 1934 or a nominee of such broker or dealer). The
Custodial Agent shall have custodial responsibility for any assets maintained
with the Custodial Agent or its subagents pursuant to the custody agreement.
Notwithstanding any other provision of this agreement, the Company (which has
the authority to do so under the laws of its state of incorporation) agrees to
indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense,
including legal fees and expenses, which THE NORTHERN TRUST COMPANY may sustain
by reason of acting in accordance with any directions of the Investment
Committee pursuant to this paragraph (c). This paragraph shall survive the
termination of this agreement.
4.2 With respect to each Separate Investment Trust Account, the Trustee
and the Investment Trustee thereof shall upon the direction of the Investment
Committee execute an investment trust agreement with respect thereto. The
Investment Trustee shall have custody of all of the assets of the Separate
Investment Trust Account except such assets as the Investment Committee may from
time to time determine shall be held in the custody of the Trustee with the
Trustee's written consent; the Trustee shall act with respect to any such assets
in its custody only as directed by the Investment Trustee.
4.3 With respect to each Separate Insurance Contract Account, from assets
allocated thereto the Trustee shall purchase or continue in effect such
insurance contracts as the Investment Committee shall direct, the issuing
insurance company may credit those assets to its general account or to one or
more of its separate accounts, and the Trustee shall act with respect to those
contracts only as directed by the Investment Committee.
4.4 The Investment Committee shall have investment responsibility for
assets held in any Separate Account for which an Investment Manager or
Investment Trustee has not been retained, has been removed, or is for any reason
unwilling or unable to act. With respect to assets or Separate Accounts for
which the Investment Committee has investment responsibility, the Trustee,
acting only as directed by the Investment Committee, shall enter into such
agreements as are necessary to facilitate any investment, including agreements
entering into a limited partnership, Subtrust or the participation in real
estate funds. The Trustee shall not make any investment review of, or consider
the propriety of holding or selling, or vote any assets for which the Investment
Committee has investment responsibility.
4.5 With respect to each Separate Account, the Investment Adviser thereof
shall have the investment powers granted to the Trustee by ARTICLE SIX, as
limited by 7.1 through 7.3 of ARTICLE SEVEN, as if all references therein to the
Trustee referred to the Investment Adviser.
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4.6 The Investment Committee may also direct the Trustee as fiduciary to
lend securities of the Trust Fund held by the Trustee by entering into a written
agreement with the Trustee. The terms of the agreement between the Investment
Committee and the Trustee shall be consistent with Department of Labor
Prohibited Transaction Exemption 81-6 or any successor exemption. The written
agreement between the Investment Committee and the Trustee shall direct the
Trustee to enter into a loan agreement with a borrower or borrowers. The
Trustee shall transfer securities to the borrower and invest or hold on behalf
of the Trust Fund the collateral received in exchange for the securities.
Notwithstanding anything in this agreement to the contrary, the borrower shall
have the authority and responsibility to vote securities it has borrowed. The
Trustee shall maintain a record of the market value of the loaned securities and
shall be paid reasonable compensation as agreed to by the Trustee and the
Investment Committee.
4.7 The Investment Committee may direct the Trustee to: (i) enter into
such agreements as are necessary to implement investment in futures contracts
and options on futures contracts; (ii) transfer initial margin to a futures
commission merchant or third party safekeeping bank pursuant to directions from
such Investment Adviser and (iii) pay or demand variation margin in accordance
with industry practice to or from such futures commission merchant based on
daily marking to market calculations. The Trustee shall have no investment or
custodial responsibility with respect to assets transferred to a futures
commission merchant or third party safekeeping bank.
ARTICLE FIVE: INVESTMENT FUNDS
The Trust Fund shall be composed of assets of the Northern Trust Stock Fund
and any other Investment Funds as designated in writing by the Investment
Committee. The Investment Committee is authorized to terminate the existing
Investment Funds and establish new Investment Funds by giving advance written
notice to the Trustee describing the fund to be terminated or established and
the effective date thereof, provided that in no event shall the Trustee's duties
be modified without its consent. The Investment Committee or its representative
shall direct the Trustee with respect to the allocation of assets to Investment
Funds and with respect to transfers among such Investment Funds. The Trustee
shall use its best efforts to move funds as soon as practicable when transfers
are delayed for any reason, but shall in no event be required to advance its own
funds for such purpose. Pending directions from the Investment Committee to
allocate contributions among the Investment Funds, the Trustee shall hold the
contributions in a separate account invested in short term investments,
including common or collective short term investment funds of the Trustee.
To the extent that any Investment Fund is invested in mutual fund shares or
bank commingled funds, the Investment Committee shall initially select funds to
be invested in and shall be responsible for retaining the availability of or
terminating the availability of such funds. To the extent the Trustee is
required to enter into a custody agreement with
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the sponsor of a bank commingled fund or such other type of fund, the Investment
Committee shall direct the Trustee to enter into such agreement.
The Northern Trust Stock Fund shall be composed of investments in Company
Stock. The Investment Committee shall notify the Trustee in writing of the
amount of the fund to be maintained in the collective short term investment fund
and the Trustee shall not be required to advance funds to make any transfers or
distributions. Any cash held by the Trustee from time to time in the Northern
Trust Stock Fund may be invested in common or collective short term investment
funds of the Trustee.
ARTICLE SIX: POWERS OF TRUSTEE
Except as otherwise provided in this agreement, the Trustee shall hold,
manage, care for and protect the assets of the Trust Fund and shall have until
actual distribution thereof the following powers and, except to the extent
inconsistent herewith, those now or hereafter conferred by law:
6.1. To retain any asset originally included in the Trust Fund or
subsequently added thereto;
6.2 To invest and reinvest the assets without distinction between income
and principal in bonds, stocks, mortgages, notes, options, futures contracts,
options on futures contracts, limited partnership interests, participations in
regulated investment companies (including those for which the Trustee or its
affiliate is adviser), or other property of any kind, real or personal, foreign
or domestic, and to enter into insurance contracts;
6.3 To deposit any part or all of the assets with the Trustee or its
affiliate as trustee, or another person or entity acting as trustee of any
collective or group trust fund which is now or hereafter maintained solely as a
medium for the collective investment of funds of pension, profit sharing or
other employee benefit plans, and which is qualified under Section 401(a) and
exempt from taxation under Section 501(a) of the Code, and to withdraw any part
or all of the assets so deposited; any assets deposited with the trustee of a
collective or group trust fund shall be held and invested by the trustee
thereunder pursuant to all the terms and conditions of the trust agreement or
declaration of trust establishing the fund, which are hereby incorporated herein
by reference and shall prevail over any contrary provision of this agreement;
6.4 To deposit cash in any depository, including the banking department of
the Trustee or its affiliate and any organization acting as a fiduciary with
respect to the Trust Fund;
6.5 To hold any part of the assets in cash without liability for interest,
pending investment thereof or the payment of expenses or making of distributions
therewith, notwithstanding the Trustee's receipt of "float" from such uninvested
cash;
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6.6 To cause any asset, real or personal, to be held in a corporate
depository or federal book entry account system or registered in the Trustee's
name or in the name of a nominee or in such other form as the Trustee deems best
without disclosing the trust relationship;
6.7 To vote, either in person or by general or limited proxy, or refrain
from voting, any corporate securities for any purpose; except that any security
as to which the Trustee's possession of voting discretion would subject the
issuing company or the Trustee to any law, rule or regulation adversely
affecting either the company or the Trustee's ability to retain or vote company
securities, shall be voted as directed by the Investment Committee, to exercise
or sell any subscription or conversion rights; to consent to and join in or
oppose any voting trusts, reorganizations, consolidations, mergers, foreclosures
and liquidations and in connection therewith to deposit securities and accept
and hold other property received therefor;
6.8 To lease any assets for any period of time though commencing in the
future or extending beyond the term of the trust;
6.9 To borrow money from any lender, to extend or renew any existing
indebtedness and to mortgage or pledge any assets;
6.10 To sell at public or private sale, contract to sell, convey, exchange,
transfer and otherwise deal with the assets in accordance with industry
practice, and to sell put and covered call options from time to time for such
price and upon such terms as the Trustee sees fit; the Company acknowledges that
the Trustee may reverse any credits made to the Trust Fund by the Trustee prior
to receipt of payment in the event that payment is not received;
6.11 To employ agents, attorneys and proxies and to delegate to any one or
more of them any power, discretionary or otherwise, granted to the Trustee;
6.12 To compromise, contest, prosecute or abandon claims in favor of or
against the Trust Fund;
6.13 To appoint foreign custodians as agent of the Trustee to custody
foreign securities holdings of any Separate Account established by the
Investment Committee or of any Trustee Investment Account;
6.14 To lend securities held by the Trustee and to receive and invest
collateral provided by the borrower, all pursuant to a written agreement with
the Investment Committee;
6.15 To utilize any tax refund claim procedures with respect to taxes
withheld to which the Trust Fund may be entitled under applicable tax laws,
treaties and regulations; any exercise of such power by the Trustee shall be on
a best efforts basis; and
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6.16 To perform other acts necessary or appropriate for the proper
administration of the Trust Fund, execute and deliver necessary instruments and
give full receipts and discharges.
ARTICLE SEVEN: LIMITATIONS ON POWERS
For purposes of this agreement, the powers and responsibilities allocated
to the Trustee shall be limited as follows:
7.1 The powers of the Trustee shall be exercisable for the exclusive
purpose of providing benefits to the Participants and Beneficiaries under the
Plans and in accordance with the standards of a prudent man under ERISA;
7.2 Subject to 7.1 and 7.3, the Trustee shall diversify the investments of
that portion of the Trust Fund for which it has investment responsibility so as
to minimize the risk of large losses;
7.3 Subject to 7.1, the Trustee shall, with respect to that portion of the
Trust Fund for which it has investment responsibility, follow the investment
guidelines established by the Investment Committee given in exercise of that
Committee's responsibility;
7.4 Except as otherwise provided in 4.6, the Trustee shall not make any
investment review of, consider the propriety of holding or selling, or vote
other than as directed by the Investment Adviser, any assets of the Trust Fund
allocated to a Separate Account in accordance with ARTICLE FOUR, except that if
the Trustee shall not have received contrary instructions from the Investment
Adviser thereof, the Trustee shall invest for short term purposes any cash
consisting of U.S. dollars of a Separate Account in its custody in bonds, notes
and other evidences of indebtedness having a maturity date not beyond five years
from the date of purchase, United States Treasury bills, commercial paper,
bankers' acceptances and certificates of deposit, and undivided interests or
participations therein and (if subject to withdrawal on a daily or weekly basis)
participations in common or collective funds composed thereof. For currencies
other than U.S. dollars, the Trustee shall invest cash of a Separate Account as
directed by the Investment Adviser with respect to that Separate Account and
such investments may include an interest bearing account of a foreign custodian;
and
7.5 The Trustee shall vote shares of Company Stock held in the Northern
Trust Stock Fund and respond to a tender or exchange offer in accordance with
(a) of the following provisions:
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(a) The Trustee, or the Company upon written notice to the Trustee, shall
furnish to each Participant who has Company Stock credited to his or her
individual account under the Northern Trust Stock Fund the date and purpose of
each meeting of the stockholders of the Company at which Company Stock is
entitled to be voted. The Trustee, or the Company if it has furnished the above
information, shall request from each Participant instructions to be furnished to
the Trustee (or to a tabulating agent appointed by the Trustee) as to the voting
at that meeting of Company Stock credited to the Participant's account. If the
Participant furnishes such instructions to the Trustee or its agent within the
time specified in the notification, the Trustee shall vote such Company Stock in
accordance with the Participant's instructions. All Company Stock credited to
Participant accounts as to which the Trustee or its agent do not receive
instructions as specified above, and all unallocated Company Stock held in the
Northern Trust Stock Fund shall be voted by the Trustee proportionately in the
same manner as it votes Company Stock as to which the Trustee or its agent have
received voting instructions as specified above. Similarly, the Trustee, or the
Company upon written notice to the Trustee, shall furnish to each Participant
who has Company Stock credited to his or her individual account under the
Northern Trust Stock fund notice of any tender offer for, or a request or
invitation for tenders of, Company Stock received by the Trustee. The Trustee,
or the Company if it has furnished such notice, shall request from each such
Participant instructions to be furnished to the Trustee (or to a tabulating
agent appointed by the Trustee) as to the tendering of Company Stock credited to
the Participant's account and for this purpose the Trustee or the Company, as
the case may be, shall provide Participants with a reasonable period of time in
which they may consider any such tender offer for, or request or invitation for
tenders of, Company Stock of which the Trustee has been advised by the
Administrative Committee. The Trustee shall tender such Company Stock as to
which the Trustee or its agent have received instructions to tender from
Participants within the time specified by the Trustee or the Company, as the
case may be. Company Stock credited to Participant accounts as to which the
Trustee or its agent have not received instructions from Participants shall not
be tendered. As to all unallocated Company Stock held by the Trustee, the
Trustee shall tender the same proportion thereof as the Company Stock as which
the Trustee or its agent have received instructions from Participants to tender
bears to all Company Stock allocated to Participant accounts. The
Administrative Committee shall provide the Trustee with timely information
regarding proxy voting and tender offers and in carrying out its
responsibilities under this provision the Trustee may conclusively rely on
information furnished to it by the Administrative Committee, including the names
and current addresses of Participants, the number of shares of Company Stock
credited to Participant accounts under the Northern Trust Stock Fund, and the
number of shares of Company Stock held by the Trustee in the Northern Trust
Stock Fund that have not yet been allocated.
A Participant shall be a "named fiduciary" under ERISA to the extent of the
Participant's authority to invest, vote, tender or exchange Company Stock
allocated to the Participant's account and with respect to the Participant's
proportionate share of unallocated Company Stock held by the Trustee.
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(b) No provision of this Section 7.5 shall prevent the Trustee from taking
any action relating to its duties under this Section 7.5 if the Trustee
determines in its sole discretion that such action is necessary in order for the
Trustee to fulfill its fiduciary responsibilities under ERISA.
(c) Purchases and sales of Company Stock may be made to, from or through
any source, provided that such purchases from or sales to a party in interest
(as defined in Section 3(14) of ERISA) shall comply with the requirements of
Section 408(e) of ERISA. Rights, options or warrants offered to purchase Company
Stock shall be exercised by the Trustee to the extent that there is cash
available for the investment; to the extent cash is not available, the same
shall be sold on the open market.
(d) Except for the short term investment of cash, the Company has limited
the investment power of the Trustee in the Northern Trust Stock Fund to the
purchase of Company Stock. The Trustee shall not be liable for the purchase,
retention, tender or sale of Company Stock and the Company (which has the
authority to do so under the laws of the state of its incorporation) agrees to
indemnify THE NORTHERN TRUST COMPANY from any liability, loss and expense,
including legal fees and expenses which THE NORTHERN TRUST COMPANY may sustain
by reason of purchase, retention, tender or sale of Company Stock. This
paragraph shall survive the termination of this agreement.
7.6 The Investment Committee shall have sole responsibility for the
decision to maintain the custody of foreign investments abroad. Except as
otherwise directed by the Investment Committee, custody of foreign investments
shall be maintained with foreign custodians selected by the Trustee. The
Trustee shall have no responsibility for losses to the Trust Fund resulting from
the acts or omissions of any foreign custodian appointed by the Trustee unless
due to the foreign custodian's fraud, negligence or willful misconduct. The
Trustee shall maintain custody of foreign investments in any jurisdiction where
the Trustee has not selected a custodian solely as directed by the Investment
Committee. The Trustee shall have no responsibility for the financial
condition, acts or omissions of any foreign custodian holding assets of the
Trust Fund at the direction of the Investment Committee.
7.7 The Trustee shall have no responsibility for: (a) any condition which
now exists or may hereafter be found to exist in, under, or about any real
estate investment of the Trust Fund or of a corporation organized under Section
501(c)(2) or 501(c)(25) of the Code, the stock of which is held as an asset of
the Trust Fund; or (b) any violation of any applicable environmental or health
or safety law, ordinance, regulation or ruling; or (c) the presence, use,
generation, storage, release, threatened release, or containment, treatment or
disposal of any hazardous or toxic substances or materials including such
situations at or activities on any investment of the Trust Fund or of a Section
501(c)(2) or 501(c)(25) corporation, the stock of which is held as an asset of
the Trust Fund. The Trustee is hereby authorized to pay from the Trust Fund all
costs and expenses (including attorneys fees) relating to or connected with any
condition, violation, presence or other situation
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referred to in (a), (b) and (c) above, and notwithstanding anything to the
contrary in this agreement, to the extent permitted by law, THE NORTHERN TRUST
COMPANY shall be indemnified from the Trust Fund from all claims, suits, losses
and expenses (including attorneys fees) arising therefrom. The authority to pay
from the Trust Fund and the right of indemnification set forth in the preceding
sentence include and relate to, without limitation, any claims, suits,
liabilities, losses and expenses (including attorneys fees) arising from any
matters relating to the existence of petroleum including crude oil and any
fraction thereof, hazardous substances, pollutants, or contaminants as defined
in the Comprehensive Environmental, Responsibility, Compensation, and Liability
Act, as amended, 42 U.S.C. Section 9601 et seq., or hazardous wastes as defined
in the Resource Conservation and Liability Act, 42 U.S.C. Section 6906 et seq.,
or as any of the foregoing terms or similar terms may be defined in similar
state environmental laws or subsequent federal or state legislation of a similar
nature which may be enacted from time to time. This paragraph shall survive the
sale or other disposition of any real estate investment of the Trust Fund and
the termination of this agreement. Nothing in this paragraph shall be construed
to in any way limit the indemnification rights of the Trustee provided for in
ARTICLE TEN.
ARTICLE EIGHT: ACCOUNTS
The Trustee shall maintain accounts of all receipts and disbursements,
including contributions, distributions, purchases, sales and other transactions
of the Trust Fund. The accounts, and the books and records relating thereto,
shall be open to inspection and audit at all reasonable times by any person or
persons designated by the Investment Committee or entitled thereto under ERISA.
Within 120 days after the close of each fiscal year of the Trust Fund and of any
other period agreed upon by the Trustee and the Investment Committee the Trustee
shall render to the Investment Committee a statement of account for the Trust
Fund for the period commencing with the close of the last preceding period and a
list showing each asset thereof as of the close of the current period and its
cost and fair market value. The Trustee shall rely conclusively upon the
determination of the issuing insurance company with respect to the fair market
value of each insurance contract and upon the determination of the Investment
Adviser of each Separate Account with respect to the fair market value of those
assets allocated thereto which the Trustee deems not to have a readily
ascertainable value, and the Trustee shall have no responsibility with respect
thereto.
An account of the Trustee may be approved by the Investment Committee by
written notice delivered to the Trustee or by failure to object to the account
by written notice delivered to the Trustee within 6 months of the date upon
which the account was delivered to the Investment Committee. The approval of an
account shall constitute a full and complete discharge to the Trustee as to all
matters set forth in that account as if the account had been settled by a court
of competent jurisdiction in an action or proceeding to which the Trustee, the
Company and the Investment Committee were parties. In no event shall the
Trustee be precluded from having its accounts settled by a judicial proceeding.
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Nothing in this article shall relieve the Trustee of any responsibility, or
liability for any responsibility, under ERISA.
ARTICLE NINE: TRUSTEE SUCCESSION
The Trustee may resign at any time by written notice to the Investment
Committee, or the Investment Committee may remove the Trustee by written notice
to the Trustee. The resignation or removal shall be effective 60 days after the
date of the Trustee's resignation or receipt of the notice of removal, or at
such earlier date as the Trustee and the Investment Committee may agree.
In case of the resignation or removal of the Trustee, the Investment
Committee shall appoint a successor trustee by delivery to the Trustee of a
written instrument executed by the Investment Committee appointing the successor
Trustee and a written instrument executed by the successor trustee accepting the
appointment, whereupon the Trustee shall deliver the assets of the Trust Fund to
the successor trustee but may reserve such reasonable amount as the Trustee may
deem necessary for outstanding and accrued charges against the Trust Fund.
The successor trustee, and any successor to the trust business of the
Trustee by merger, consolidation or otherwise, shall have all the powers given
the originally named Trustee. No successor trustee shall be personally liable
for any act or omission of any predecessor. Except as otherwise provided in
ERISA, the receipt of the successor trustee and the approval of the Trustee's
final account by the Investment Committee in the manner provided in ARTICLE
EIGHT shall constitute a full and complete discharge to the Trustee.
ARTICLE TEN: MISCELLANEOUS
10.1 Any action required to be taken by the Company or by a Subsidiary
shall be by resolution of its board of directors or by written direction of one
or more of its president, any vice president or treasurer. The Trustee may rely
upon a resolution or direction filed with the Trustee and shall have no
responsibility for any action taken by the Trustee in accordance with any such
resolution or direction.
10.2 The Company shall certify to the Trustee the names of the members of
the Administrative Committee and of the Investment Committee acting from time to
time, and the Trustee shall not be charged with knowledge of a change in the
membership of a Committee until so notified by the Company. Any action required
to be taken by a Committee shall be by direction of such person or persons as
shall be designated by the Committee to act for the Committee. The Trustee may
rely upon an instrument of designation signed by the secretary or chairman of
the Committee and filed with the Trustee and shall have no responsibility for
any action taken by the Trustee in accordance
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with any such direction. Notwithstanding anything herein to the contrary, the
Administrative Committee or the Investment Committee may delegate any of its
responsibilities hereunder to a representative by giving to the Trustee in
writing a letter which identifies the representative and sets forth the list of
its responsibilities under this agreement that it has authorized the
representative to carry out.
10.3 The Trustee may consult with legal counsel, who may also be counsel
for the Company, with respect to its responsibilities under this agreement and
shall be fully protected in acting or refraining from acting in reliance upon
the written advice of legal counsel.
10.4 In no event shall the terms of any Plan, either expressly or by
implication, be deemed to impose upon the Trustee any power or responsibility
other than those set forth in this agreement. The Trustee may assume until
advised to the contrary that each Plan and the Trust Fund is qualified under
Section 401(a) and exempt from taxation under Section 501(a) of the Code, or
under corresponding provisions of subsequent federal tax laws. The Trustee
shall be accountable for contributions made to a Plan and included among the
assets of the Trust Fund but shall have no responsibility to determine whether
the contributions comply with the provisions of the Plan or of ERISA.
10.5 In any judicial proceeding to settle the accounts of the Trustee, the
Trustee, the Company and the Investment Committee shall be the only necessary
parties; in any other judicial proceeding with respect to the Trustee or the
Trust Fund, the Trustee, the Company and each affected Subsidiary shall be the
only necessary parties; and no Participant or Beneficiary shall be entitled to
any notice of process. A final judgment in any such proceeding shall be binding
upon the parties to the proceeding and all Participants and Beneficiaries.
10.6 The Trustee shall be reimbursed for all expenses incurred in the
management and protection of the Trust Fund, including accounting and legal
fees, and shall receive such reasonable compensation for its services as the
Trustee and the Company shall from time to time determine. Those items of
expense and compensation shall be paid from the Trust Fund, subject to prior
payment or reimbursement by the Company in its discretion.
10.7 Without limiting the rights of the Trustee as otherwise provided in
this agreement, pursuant to direction by the Investment Committee, the Trustee
shall pay from the Trust Fund expenses of a Plan or compensation to parties
providing services to a Plan including but not by way of limitation, expenses or
compensation related to actuarial, legal, accounting, office space, printing,
computer, recordkeeping, investment, performance evaluation or any other
material or service provided to a Plan.
10.8 In the event that THE NORTHERN TRUST COMPANY incurs any liability,
loss, claim, suit or expense (including attorneys fees) in connection with or
arising out of its provision of services under this agreement, or its status as
Trustee hereunder,
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under circumstances where THE NORTHERN TRUST COMPANY cannot obtain or would be
precluded by law from obtaining payment or reimbursement of such liability,
loss, claim, suit or expense (including attorneys fees) from the Trust Fund,
then the Company (which has the authority to do so under the laws of the state
of its incorporation) shall indemnify and hold THE NORTHERN TRUST COMPANY
harmless from and against such liability, loss, claim, suit or expense, except
to the extent that such liability, loss, claim, suit or expense arises from a
breach by the Trustee of responsibilities specifically allocated to it by the
terms of this agreement. This paragraph shall survive the termination of this
agreement.
10.9 Neither the Company, the Administrative Committee nor the Investment
Committee shall direct the Trustee to cause any part of the Trust Fund to be
diverted to any purpose other than the exclusive benefit of the Participants and
Beneficiaries or, except as otherwise permitted under the affected Plan and
under ERISA, to be remitted to the Company or a Subsidiary.
10.10 Any person dealing with the Trustee shall not be required to see to
the application of any money paid or property delivered to the Trustee or
inquire into the provisions of this agreement or of a Plan or the Trustee's
authority thereunder or compliance therewith, and may rely upon the statement of
the Trustee that the Trustee is acting in accordance with this agreement.
10.11 Except as otherwise directed by the Administrative Committee, which
direction shall be in compliance with all applicable provisions of the 1984
Retirement Equity Act, the Plans and Section 401(a)(13) of the Code, any
interest of a Participant or Beneficiary in the Trust Fund or a Plan or in any
distribution therefrom shall not be subject to the claim of any creditor, any
spouse for alimony or support, or others, or to legal process, and may not be
voluntarily or involuntarily alienated or encumbered.
10.12 If for any reason the Trustee is unwilling or unable to act as to
any property, such person or qualified corporation as the Trustee shall from
time to time designate in writing shall act as special trustee as to that
property. Any person or corporation acting as special trustee may resign at any
time by written notice to the Trustee. Each special trustee shall have the
powers granted to the Trustee by this agreement, to be exercised only with the
approval of the Trustee, to which the net income and the proceeds from sale of
any part or all of the property shall be remitted to be administered under this
agreement.
10.13 Loans to Participants as provided for in a Plan shall be granted and
administered by the Administrative Committee. The Trustee shall distribute cash
to such Participants who are granted loans in such amount and at such times as
the
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Administrative Committee shall from time to time direct in writing. Loan
payments collected by the Administrative Committee shall be forwarded to the
Trustee. The amount of such loans shall be carried by the Trustee as an asset
of the trust equal to the combined unpaid principal balance of all Participants.
The Trustee shall rely conclusively upon the determination of the Administrative
Committee with respect to the amount of the combined unpaid principal balance of
all Participants. The Trustee shall have no responsibility to ascertain whether
a loan complies with the provisions of a Plan, for the decision to grant a loan
or for the collection and repayment of a loan.
ARTICLE ELEVEN: GOVERNING LAW
The provisions of ERISA and the internal laws of Illinois shall govern the
validity, interpretation and enforcement of this agreement, and in case of
conflict, the provisions of ERISA shall prevail. The invalidity of any part of
this agreement shall not affect the remaining parts thereof.
ARTICLE TWELVE: AMENDMENT AND TERMINATION
The Company may at any time or times with the consent of the Trustee amend
this agreement in whole or in part by instrument in writing delivered to the
Trustee and effective upon the date therein provided.
This agreement shall terminate with respect to a Plan by action of the
Company or Subsidiary responsible for making contributions to the Plan Account.
Upon termination with respect to a Plan, the Trustee shall withdraw the Plan
Account in the manner directed by the Investment Committee, in cash or in kind
or partly in each as the Trustee and the Investment Committee shall agree,
except that the Trustee shall be entitled to prior receipt of such rulings and
determinations from such administrative agencies as it may deem necessary or
advisable to assure itself that the distribution directed is in accordance with
law and will not subject the Trust Fund or the Trustee to liability, and except,
further, that the Trustee may reserve such reasonable amount as the Trustee may
deem necessary for outstanding and accrued charges against the Plan Account.
This agreement shall terminate in its entirety when there is no asset included
in the Trust Fund.
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IN WITNESS WHEREOF, the Company and the Trustee have executed this
agreement by their respective duly authorized officers and have caused their
respective corporate seals to be affixed hereto the day and year first above
written.
THE NORTHERN TRUST COMPANY
(as Plan Sponsor)
By: /s/ Joan O'Donnell
------------------------------
Its: Secretary, Employee Benefit Administrative
Committee
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ATTEST:
- -------------------------
(CORPORATE SEAL)
THE NORTHERN TRUST COMPANY
By: /s/ Karen L. Fayen
------------------------------
Its: Second Vice President
------------------------------
ATTEST:
/s/ Robert F. Draths, Jr.
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(CORPORATE SEAL)
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