EXHIBIT 10(KK)
TRUST AGREEMENT
BETWEEN
_______________________________________________________________________
INFORMATION RESOURCES, INC.
AND
FIDELITY MANAGEMENT TRUST COMPANY
_______________________________________________________________________
INFORMATION RESOURCES, INC. 401(K) RETIREMENT SAVINGS PLAN
TRUST
DATED AS OF JULY 1, 1996
TABLE OF CONTENTS
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SECTION PAGE
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1 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Exclusive Benefit and Reversion of Sponsor Contributions. . . . . . . 2
3 Disbursements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Administrator Directed Disbursements
(b) Participant Withdrawal Requests
(c) Limitations
4 Investment of Trust . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
(e) Notes
(f) Notes for General Purposes
(g) Notes for Purchase of Primary Residence
(h) Reliance of Trustee on Directions
(i) Trustee Powers
5 Recordkeeping and Administrative Services to Be Performed . . . . . . 7
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 Compensation and Expenses . . . . . . . . . . . . . . . . . . . . . . 9
7 Directions and Indemnification. . . . . . . . . . . . . . . . . . . . 9
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Administrator
(c) Directions from Named Fiduciary
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
8 Resignation or Removal of Trustee . . . . . . . . . . . . . . . . . . 10
(a) Resignation
(b) Removal
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TABLE OF CONTENTS
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(CONTINUED)
SECTION PAGE
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9 Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11 Resignation, Removal, and Termination Notices . . . . . . . . . . . . 12
12 Duration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13 Amendment or Modification . . . . . . . . . . . . . . . . . . . . . . 12
14 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) Performance by Trustee, its Agents or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
15 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
SCHEDULES
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A. Recordkeeping and Administrative Services
B. Fee Schedule
C. Investment Options
D. Sponsor's Authorization Letter
E. Named Fiduciary's Authorization Letter
F. IRS Determination Letter or Opinion of Counsel
G. Telephone Exchange Procedures
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TRUST AGREEMENT, dated as of the first day of July, 1996, between
INFORMATION RESOURCES, INC., a Delaware corporation, having an office at
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000 (the "Sponsor"), and
FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an
office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Information Resources, Inc.
401(k) Retirement Savings Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish a trust to hold and invest plan
assets under the Plan for the exclusive benefit of Participants in the Plan and
their beneficiaries; and
WHEREAS, the Committee as defined in the Plan (the "Named Fiduciary") is the
named fiduciary of the Plan (within the meaning of section 402(a) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan assets
in trust among several investment options selected by the Named Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain ministerial
recordkeeping and administrative functions under the Plan; and
WHEREAS, the Sponsor (the "Administrator") is the administrator of the Plan
(within the meaning of section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping and administrative
services for the Plan if the services are purely ministerial in
nature and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, the Sponsor and the Trustee agree as
follows:
SECTION 1. TRUST. The Sponsor hereby establishes the Information Resources,
Inc. 401(k) Retirement Savings Plan Trust (the "Trust"), with the Trustee. The
Trust shall consist of an initial contribution of money or other property
acceptable to the Trustee in its sole discretion, made by the Sponsor or
transferred from a previous trustee under the Plan, such additional sums of
money as shall from time to time be delivered to the Trustee under the Plan, all
investments made therewith and proceeds thereof, and all earnings and profits
thereon, less the payments that are made by the Trustee as provided herein,
without distinction between principal and income. The Trustee hereby accepts
the Trust on the terms and conditions set forth in this Agreement. In accepting
this Trust, the Trustee shall be accountable for the assets received by it,
subject to the terms and conditions of this Agreement.
SECTION 2. EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS. Except as
provided under applicable law, no part of the Trust may be used for, or diverted
to, purposes other than the exclusive benefit of the Participants in the Plan or
their beneficiaries prior to the satisfaction of all liabilities with respect to
the Participants and their beneficiaries.
SECTION 3. DISBURSEMENTS.
(a) Administrator Directed Disbursements. The Trustee shall make
disbursements in the amounts and in the manner that the Administrator directs
from time to time in writing. The Trustee shall have no responsibility to
ascertain such direction's compliance with the terms of the Plan or of any
applicable law or the direction's effect for tax purposes or otherwise; nor
shall the Trustee have any responsibility to see to the application of any
disbursement.
(b) Participant Withdrawal Requests. The Sponsor hereby directs that,
pursuant to the Plan, a Participant withdrawal request (in-service or full
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withdrawal) may be made by the Participant by telephone, and the Trustee shall
process such request only after the identity of the Participant is verified by
use of a personal identification number ("PIN") and social security number. The
Trustee shall process such withdrawal in accordance with written guidelines
provided by the Sponsor and documented in the Plan Administrative Manual.
(c) Limitations. The Trustee shall not be required to make any
disbursement in excess of the net realizable value of the assets of the Trust at
the time of the disbursement. The Trustee shall not be required to make any
disbursement in cash unless the Administrator has provided a written direction
as to the assets to be converted to cash for the purpose of making the
disbursement.
SECTION 4. INVESTMENT OF TRUST.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment options under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
(b) Available Investment Options. The Named Fiduciary
shall direct the Trustee as to what investment options: (i) the Trust shall be
invested in during the period beginning on the date of the initial transfer of
assets to the Trust and ending on the date of the completion of the
reconciliation of Participant records ("Participant recordkeeping reconciliation
period"), and (ii) the investment options in which Plan Participants may invest,
subject to the following limitations. The Named Fiduciary may determine to
offer as investment options only (i) securities issued by the investment
companies advised by Fidelity Management & Research Company ("Mutual Funds") and
(ii) notes evidencing loans to Plan Participants in accordance with the terms of
the Plan. The investment options initially selected by the Named Fiduciary are
identified on Schedules "A" and "C" attached hereto. The Named Fiduciary may
add additional investment options with the consent of the Trustee and upon
mutual amendment of this Trust Agreement and the Schedules thereto to reflect
such additions.
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(c) Participant Direction. Each Plan Participant shall direct the
Trustee in which investment option(s) to invest the assets in the Participant's
individual accounts. Such directions may be made by Plan Participants by use of
the telephone exchange system maintained for such purposes by the Trustee or its
agent, in accordance with written Telephone Exchange Guidelines attached hereto
as Schedule "G". In the event that the Trustee fails to receive a proper
direction, the assets shall be invested in the securities of the Mutual Fund set
forth for such purpose on Schedule "C", until the Trustee receives a proper
direction.
(d) Mutual Funds. The Sponsor hereby acknowledges that it has received
from the Trustee a copy of the prospectus for each Mutual Fund selected by the
Named Fiduciary as a Plan investment option or short-term investment fund. Trust
investments in Mutual Funds shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of
Mutual Funds (other than for exchanges) shall be made on the date on which the
Trustee receives from the Sponsor in good order all information and
documentation necessary to accurately effect such purchases and sales (or in the
case of a purchase, the subsequent date on which the Trustee has received a wire
transfer of funds necessary to make such purchase). Exchanges of Mutual Funds
shall be made in accordance with the Telephone Exchange Guidelines attached
hereto as Schedule "G".
(ii) Voting. At the time of mailing of notice of each annual or
special stockholders' meeting of any Mutual Fund, the Trustee shall send a copy
of the notice and all proxy solicitation materials to each Plan Participant who
has shares of the Mutual Fund credited to the Participant's accounts, together
with a voting direction form for return to the Trustee or its designee. The
Sponsor shall have the right to direct the Trustee as to the manner in which the
Trustee is to vote the Mutual Fund shares held in any short-term investment
fund or liquidity reserve. The Participant shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the shares credited to
the Participant's accounts (both vested and unvested). The Trustee shall vote
the shares as directed by the Participant. The Trustee shall not vote shares
for which it has received no directions from the Participant. During the
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Participant recordkeeping reconciliation period, the Sponsor shall have the
right to direct the Trustee as to the manner in which the Trustee is to vote the
shares of the Mutual Funds in the Trust including Mutual Fund shares held in any
short-term investment fund for liquidity reserve. With respect to all rights
other than the right to vote, the Trustee shall follow the directions of the
Participant and if no such directions are received, the directions of the Named
Fiduciary. The Trustee shall have no further duty to solicit directions from
Participants or the Sponsor.
(e) Notes for General Purpose (five years or less). The Administrator
shall act as the Trustee's agent for Participant loan notes and as such shall
(i) collect and remit all principal and interest payments to the Trustee and
(ii) keep the proceeds of such loans separate from the other assets of the
Administrator and clearly identify such assets as Plan assets. To originate a
Participant loan, the Plan Participant shall direct the Trustee as to the term
and amount of the loan to be made from the Participant's individual account.
Such directions shall be made by Plan Participants by use of the telephone
exchange system maintained for such purpose by the Trustee or its agent. The
Trustee shall determine, based on the current value of the Participant's account
on the date of the request and any guidelines provided by the Sponsor, the
amount available for the loan. Based on the interest rate supplied by the
Sponsor in accordance with the terms of the Plan, the Trustee shall advise the
Participant of such interest rate, as well as the installment payment amounts.
The Trustee shall distribute the loan note with the proceeds check to the
Participant. The Trustee also shall distribute truth-in-lending disclosure to
the Participant. To facilitate recordkeeping, the Trustee may destroy the
original of any promissory note made in connection with a loan to a Participant
under the Plan, provided that the Trustee first creates a duplicate by a
photographic or optical scanning or other process yielding a reasonable
facsimile of the promissory note and the Plan Participant's signature thereon,
which duplicate may be reduced or enlarged in size from the actual size of the
original promissory note.
(f) Notes for Purchase of Primary Residence (for a period greater than
five years. The Administrator shall act as the Trustee's agent for the
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purpose of holding all trust investments in Participant loan notes and related
documentation and as such shall (i) hold physical custody of and keep safe the
notes and other loan documents, (ii) collect and remit all principal and
interest payments to the Trustee, (iii) keep the proceeds of such loans separate
from the other assets of the Administrator and clearly identify such assets as
Plan assets, and (iv) cancel and surrender the notes and other loan
documentation when a loan has been paid in full. To originate a Participant
loan, the Plan Participant shall direct the Trustee as to the type of loan to be
made from the Participant's individual account. Such directions shall be made
by Plan Participants by use of the telephone exchange system maintained for such
purpose by the Trustee or its agent. The Trustee shall determine, based on the
current value of the Participant's account, the amount available for the loan.
Based on the interest rate supplied by the Sponsor in accordance with the terms
of the Plan, the Trustee shall advise the Participant of such interest rate, as
well as the installment payment amounts. The Trustee shall forward the loan
document to the Participant for execution and submission for approval to the
Administrator. The Administrator shall have the responsibility for approving the
loan and instructing the Trustee to send the loan proceeds to the Administrator
or to the Participant if so directed by the Administrator. In all cases, such
instruction by the Administrator shall be made within thirty (30) days of the
Participant's initial request (the origination date).
(g) Reliance of Trustee on Directions.
(i) The Trustee shall not be liable for any loss, or by reason of
any breach, which arises from any Participant's exercise or non-exercise of
rights under this Section 4 over the assets in the Participant's accounts.
(ii) The Trustee shall not be liable for any loss, or by reason of
any breach, which arises from the Named Fiduciary's exercise or non-exercise of
rights under this Section 4, unless it was clear on their face that the actions
to be taken under the Named Fiduciary's directions were prohibited by the
fiduciary duty rules of section 404(a) of ERISA or were contrary to the terms of
the Plan or this Agreement.
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(h) Trustee Powers. The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b), (c) and (d) of this Section 4, to
sell, exchange, convey, transfer, or otherwise dispose of any property held in
the Trust, by private contract or at public auction. No person dealing with the
Trustee shall be bound to see to the application of the purchase money or other
property delivered to the Trustee or to inquire into the validity, expediency,
or propriety of any such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4, to
invest in guaranteed investment contracts and short term investments (including
interest bearing accounts with the Trustee or money market mutual funds advised
by affiliates of the Trustee) and in collective investment funds maintained by
the Trustee for qualified plans, in which case the provisions of each collective
investment fund in which the Trust is invested shall be deemed adopted by the
Sponsor and the provisions thereof incorporated as a part of this Trust as long
as the fund remains exempt from taxation under Sections 401(a) and 501(a) of the
Internal Revenue Code of 1986, as amended.
(iii) To cause any securities or other property held as part of the
Trust to be registered in the Trustee's own name, in the name of one or more of
its nominees, or in the Trustee's account with the Depository Trust Company of
New York and to hold any investments in bearer form, but the books and records
of the Trustee shall at all times show that all such investments are part of the
Trust.
(iv) To keep that portion of the Trust in cash or cash balances as
the Named Fiduciary or Administrator may, from time to time, deem to be in the
best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein granted.
(vi) To borrow funds from a bank not affiliated with the Trustee
in order to provide sufficient liquidity to process Plan transactions in a
timely
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fashion, provided that the cost of borrowing shall be allocated in a reasonable
fashion to the investment fund(s) in need of liquidity.
(vii) To settle, compromise, or submit to arbitration any claims,
debts, or damages due to or arising from the Trust; to commence or defend suits
or legal or administrative proceedings; to represent the Trust in all suits and
legal and administrative hearings; and to pay all reasonable expenses arising
from any such action, from the Trust if not paid by the Sponsor.
(viii) To employ legal, accounting, clerical, and other assistance
as may be required in carrying out the provisions of this Agreement and to pay
their reasonable expenses and compensation from the Trust if not paid by the
Sponsor.
(ix) To do all other acts although not specifically mentioned
herein, as the Trustee may deem necessary to carry out any of the foregoing
powers and the purposes of the Trust.
SECTION 5. RECORDKEEPING AND ADMINISTRATIVE SERVICES TO BE PERFORMED.
(a) General. The Trustee shall perform those recordkeeping and
administrative functions described in Schedule "A" attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Administrator's written directions regarding the Plan's
provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as of the last day of
each fiscal quarter of the Plan and, if not on the last day of a fiscal quarter,
the date on which the Trustee resigns or is removed as provided in Section 8 of
this Agreement or is terminated as provided in Section 10 (the "Reporting
Date"). Within thirty (30) days following each Reporting Date or within sixty
(60) days in the case of a Reporting Date caused by the resignation or removal
of the Trustee, or the termination of this Agreement, the Trustee shall file
with the Administrator a written account setting forth all investments,
receipts, disbursements, and other transactions effected by the Trustee between
the
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Reporting Date and the prior Reporting Date, and setting forth the value of the
Trust as of the Reporting Date. Except as otherwise required under ERISA, upon
the expiration of six (6) months from the date of filing such account with the
Administrator, the Trustee shall have no liability or further accountability to
anyone with respect to the propriety of its acts or transactions shown in such
account, except with respect to such acts or transactions as to which the
Sponsor shall within such six (6) month period file with the Trustee written
objections.
(c) Inspection and Audit. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours prior to the termination of this
Agreement, by the Administrator or any person designated by the Administrator.
Upon the resignation or removal of the Trustee or the termination of this
Agreement, the Trustee shall provide to the Administrator, at no expense to the
Sponsor, in the format regularly provided to the Administrator, a statement of
each Participant's accounts as of the resignation, removal, or termination, and
the Trustee shall provide to the Administrator or the Plan's new recordkeeper
such further records as are reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. A confirmation of the current qualified
status of the Plan is attached hereto as Schedule "F". The Trustee's provision
of the recordkeeping and administrative services set forth in this Section 5
shall be conditioned on the Sponsor delivering to the Trustee a copy of any
amendment to the Plan as soon as administratively feasible following the
amendment's adoption, with, if requested, an IRS determination letter or an
opinion of counsel substantially in the form of Schedule "F" covering such
amendment, and on the Administrator providing the Trustee on a timely basis with
all the information the Administrator deems necessary for the Trustee to perform
the recordkeeping and administrative services and such other information as the
Trustee may reasonably request.
(e) Returns, Reports and Information. The Administrator shall be
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide the
Administrator with such information as the Administrator may reasonably
9
request to make these filings. The Administrator shall also be responsible for
making any disclosures to Participants required by law including, without
limitation, such disclosures as may be required by law, except such disclosure
as may be required under federal or state truth-in-lending laws with regard to
Participant loans, which shall be provided by the Trustee.
SECTION 6. COMPENSATION AND EXPENSES. Within thirty (30) days of receipt of
the Trustee's xxxx, which shall be computed and billed in accordance with
Schedule "B" attached hereto and made a part hereof, as amended from time to
time, the Sponsor shall send to the Trustee a payment in such amount or the
Sponsor may direct the Trustee to deduct such amount from Participants'
accounts. All expenses of the Trustee relating directly to the acquisition and
disposition of investments constituting part of the Trust, and all taxes of any
kind whatsoever that may be levied or assessed under existing or future laws
upon or in respect of the Trust or the income thereof, shall be a charge against
and paid from the appropriate Plan Participants' accounts.
SECTION 7. DIRECTIONS AND INDEMNIFICATION.
(a) Identity of Administrator and Named Fiduciary. The Trustee shall be
fully protected in relying on the fact that the Named Fiduciary and the
Administrator under the Plan are the individuals or persons named as such above
or such other individuals or persons as the Sponsor may notify the Trustee in
writing.
(b) Directions from Administrator. Whenever the Administrator provides
a direction to the Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction if the direction is contained
in a writing (or is oral and immediately confirmed in a writing) signed by any
individual whose name and signature have been submitted (and not withdrawn) in
writing to the Trustee by the Administrator in the form attached hereto as
Schedule "D", provided the Trustee reasonably believes the signature of the
individual to be genuine. Such direction may also be made via electronic data
transfer (EDT) in accordance with procedures agreed to by the Administrator and
the Trustee; provided, however, that the Trustee shall be fully protected in
relying on such direction as if it were a direction made in writing by the
Administrator. The Trustee shall have no responsibility to
10
ascertain any direction's (i) accuracy, (ii) compliance with the terms of the
Plan or any applicable law, or (iii) effect for tax purposes or otherwise.
(c) Directions from Named Fiduciary. Whenever the Named Fiduciary or
Sponsor provides a direction to the Trustee, the Trustee shall not be liable for
any loss, or by reason of any breach, arising from the direction (i) if the
direction is contained in a writing (or is oral and immediately confirmed in a
writing) signed by any individual whose name and signature have been submitted
(and not withdrawn) in writing to the Trustee by the Named Fiduciary in the form
attached hereto as Schedule "E" and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear on the direction's
face that the actions to be taken under the direction would be prohibited by the
fiduciary duty rules of section 404(a) of ERISA or would be contrary to the
terms of the Plan or this Agreement.
(d) Co-Fiduciary Liability. In any other case, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from any act or
omission of another fiduciary under the Plan except as provided in section
405(a) of ERISA.
(e) Indemnification. The Sponsor shall indemnify the Trustee against,
and hold the Trustee harmless from, any and all loss, damage, penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against the Trustee by reason of any claim, regulatory proceeding, or
litigation arising from any act done or omitted to be done by any individual or
person with respect to the Plan or Trust, excepting only any and all loss, etc.,
arising solely from the Trustee's negligence or bad faith.
(f) Survival. The provisions of this Section 7 shall survive the
termination of this Agreement.
SECTION 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Resignation. The Trustee may resign at any time upon sixty (60)
days' notice in writing to the Sponsor, unless a shorter period of notice is
agreed upon by the Sponsor.
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(b) Removal. The Sponsor may remove the Trustee at any time upon sixty
(60) days' notice in writing to the Trustee, unless a shorter period of notice
is agreed upon by the Trustee.
SECTION 9. SUCCESSOR TRUSTEE.
(a) Appointment. If the office of Trustee becomes vacant for any
reason, the Sponsor may in writing appoint a successor trustee under this
Agreement. The successor trustee shall have all of the rights, powers,
privileges, obligations, duties, liabilities, and immunities granted to the
Trustee under this Agreement. The successor trustee and predecessor trustee
shall not be liable for the acts or omissions of the other with respect to the
Trust.
(b) Acceptance. When the successor trustee accepts its appointment
under this Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further action on the part
of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably may
be requested in writing by the Sponsor or the successor trustee to vest title to
all Trust assets in the successor trustee or to deliver all Trust assets to the
successor trustee.
(c) Corporate Action. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of the
Trustee or successor trustee, or through reorganization, consolidation, or
merger, or any similar transaction, shall, upon consummation of the transaction,
become the successor trustee under this Agreement.
SECTION 10. TERMINATION. This Agreement may be terminated at any time by the
Sponsor upon sixty (60) days' notice in writing to the Trustee. On the date of
the termination of this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall designate, all cash
and assets then constituting the Trust. If, by the termination date, the
Sponsor has not notified the Trustee in writing as to whom the assets and cash
are to be transferred and delivered, the Trustee may bring an appropriate action
or proceeding for leave to deposit the assets and cash in a court of competent
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jurisdiction. The Trustee shall be reimbursed by the Sponsor for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
SECTION 11. RESIGNATION, REMOVAL, AND TERMINATION NOTICES. All notices of
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Xxxxxxxx Xxxx,
Information Resources, Inc., 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx
00000-0000, and to the Trustee c/o Xxxx X. Xxxxxx, Fidelity Investments, 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other addresses as
the parties have notified each other of in the foregoing manner.
SECTION 12. DURATION. This Trust shall continue in effect without limit as to
time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
SECTION 13. AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified at any time and from time to time only by an instrument executed by
both the Sponsor and the Trustee. Notwithstanding the foregoing, to reflect
increased operating costs the Trustee may once each calendar year amend Schedule
"B" without the Sponsor's consent upon seventy-five (75) days written notice to
the Sponsor.
SECTION 14. GENERAL.
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates, including
Fidelity Investments Institutional Operations Company or its successor, and that
certain of such services may be provided pursuant to one or more other
contractual agreements or relationships.
(b) Entire Agreement. This Agreement contains all of the terms agreed
upon between the parties with respect to the subject matter hereof.
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(c) Waiver. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(f) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
SECTION 15. GOVERNING LAW.
(a) Massachusetts Law Controls. This Agreement is being made in the
Commonwealth of Massachusetts, and the Trust shall be administered as a
Massachusetts trust. The validity, construction, effect, and administration of
this Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Massachusetts, except to the extent those laws are
superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the Plan,
and in the event of any conflict between the provisions of the Plan and the
provisions of this Agreement, the provisions of this Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
INFORMATION RESOURCES, INC.
Attest: ______________________ By: ______________________________
Secretary Vice President
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: ______________________ By ______________________________
Assistant Clerk Vice President
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SCHEDULE "A"
ADMINISTRATIVE SERVICES
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Administration
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* Establishment and maintenance of Participant account and election
percentages.
* Maintenance of seven (7) plan investment options:
- Fidelity Magellan Fund
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Fidelity Puritan Fund
- Fidelity OTC Portfolio
- Fidelity U.S. Equity Index Portfolio
- Fidelity Growth & Income Portfolio
- Fidelity Overseas Fund
* Maintenance of four (4) money classifications:
- 401(k) Savings
- Matching
- Rollover
- Prior Plan P.S.
* The Trustee will provide the recordkeeping and administrative services set
forth on this Schedule "A" and as detailed in the Plan Administrative Manual and
no others.
A) PROVIDE PARTICIPANT TELEPHONE SERVICES
1. Fidelity registered representatives are available from 8:30 a.m. -
12:00 Midnight ET to provide toll free telephone service for
Participant inquiries and transactions. Additionally, Participants
have 24 hour account balance inquiry access utilizing our automated
voice response system.
2. For security purposes, all calls are recorded. In addition, several
levels of security are available including the verification of a
Personal Identification Number (PIN) and/or any other indicative data
resident on the system.
3. Through our telephone services, Fidelity provides the following
services:
- Provide mutual fund investment information.
- Maintain plan specific provisions.
- Process exchanges (transfers) between Fidelity's mutual funds on a
daily basis.
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- Maintain and process changes to Participants' contribution
allocations for all money sources.
- Allow Participants to change their deferral percentages and provide
updates via EDT for customer to apply to its payrolls accordingly.
- Consult with Participants in various loan scenarios and generate all
documentation.
- Process all Participant loan and withdrawal requests via Fidelity's
toll-free telephone service according to plan provisions on a daily
basis.
- In-service withdrawals via telephone as directed and approved by the
Sponsor.
- Hardship withdrawals via telephone as directed and approved by the
Sponsor.
B) PLAN ACCOUNTING
1. Process payroll contributions according to your payroll frequency via
electronic data transfer (EDT) or consolidated magnetic tape. The data
format will be provided by Fidelity.
2. Provide plan and Participant level accounting for up to nine (9) money
classifications for the Plan.
3. Audit and reconcile the plan and Participant accounts daily.
4. Provide daily plan and Participant level accounting for the Plan
investment options.
5. Reconcile and process Participant withdrawal requests as approved and
directed by the Sponsor. All requests are paid based on the current
market values of Participants' accounts, not advanced or estimated
values. A distribution report will accompany each check.
6. Track individual Participant loans; process loan withdrawals; re-invest
loan repayments; and prepare and deliver comprehensive reports to plan
sponsor to assist in the administration of Participant loans.
7. Maintain and process changes to Participants' prospective and existing
investment mix elections via Fidelity's toll-free telephone service.
C) PARTICIPANT REPORTING
1. Mail confirmation to Participants of all transactions initiated via
Fidelity Telephone Services within three (3) calendar days of the
transaction.
2. Prepare and mail via first class to each plan Participant a quarterly
detailed Participant statement reflecting all activity for the period.
Statements will be mailed no later than twenty (20) calendar days after
each quarter end.
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3. Mail required 402(f) notification for distribution from the plan. This
notice advises Participants of tax consequences of their plan
distribution.
D) PLAN REPORTING
1. Prepare, reconcile and deliver a monthly Trial Balance Report
presenting all money classes and investments. This report is based on
the market value as of the last business day of the month. The report
will be delivered not later than twenty (20) days after the end of each
month in the absence of unusual circumstances.
2. Prepare, reconcile and deliver a Quarterly Administrative Report
presenting both on a Participant and a total plan basis all money
classes, investment positions and a summary of all activity of the
Participant and plan as of the last business day of the quarter. The
report will be delivered not later than twenty (20) days after the end
of each quarter in the absence of unusual circumstances.
E) GOVERNMENT REPORTING
Process year-end tax reports for Participants - 1099R, as well as
financial reporting to assist in the preparation of Form 5500.
F) COMMUNICATION SERVICES
Employee communications describing available investment options,
including multimedia informational materials and group presentations.
G) OTHER
Performance of non-discrimination limitation testing upon request. In
order to obtain this service, the Sponsor shall be required to provide the
information identified in the Fidelity Discrimination Testing Package
Guidelines.
INFORMATION RESOURCES, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: _______________________ By: ____________________________
Date Vice President Date
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SCHEDULE "B"
FEE SCHEDULE
Annual Participant Fee: $8.00 per Participant*, subject to a
$15,000 per year minimum, billed and
payable quarterly.
Enrollments by Phone (optional): $5.00 per non-active employee residing
on Fidelity's Participant recordkeeping
system.
Loan Fee: Establishment fee of $35.00 per loan
account; annual fee of $15.00 per loan
account.
In-Service Withdrawals by Phone: $20.00 per withdrawal.
Remote Access: $1,000 per year. Installation of two
remote access terminals will be provided
free of charge. Installation of each
additional terminal is $1,500.
Return of Excess Contribution Fee: $25.00 per Participant, one-time charge
per calculation and check generation.
- Other Fees: separate charges for optional non-discrimination testing,
extraordinary expenses resulting from large numbers of simultaneous manual
transactions or from errors not caused by Fidelity, or for reports not
contemplated in this Agreement. The Administrator may withdraw reasonable
administrative fees from the Trust by written direction to the Trustee.
* This fee will be imposed pro rata for each calendar quarter, or any part
thereof, that it remains necessary to keep a Participant's account(s) as part
of the Plan's records, e.g., vested, deferred, forfeiture, top-heavy and
terminated Participants who must remain on file through calendar year-end for
1099-R reporting purposes.
Note: These fees have been negotiated and accepted based on current plan assets
of $28 million, current participation of 2,252 Participants and projected net
cash flows of $6.2 million per year. Fees will be subject to revision if these
Plan characteristics change significantly by either falling below or exceeding
current or projected levels. Fees also have been based on the use of up to
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seven (7) investment options, and such fees will be subject to revision if
additional investment options are added.
INFORMATION RESOURCES, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By: _______________________ By: ____________________________
Date Vice President Date
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SCHEDULE "C"
INVESTMENT OPTIONS
In accordance with Section 4(b), the Named Fiduciary hereby directs the
Trustee that Participants' individual accounts may be invested in the following
investment options:
- Fidelity Magellan Fund
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Fidelity Puritan Fund
- Fidelity OTC Portfolio
- Fidelity U.S. Equity Index Portfolio
- Fidelity Growth & Income Portfolio
- Fidelity Overseas Fund
The mutual fund advised by Fidelity Management & Research Company referred
to in Section 4(c) shall be the Fidelity Money Market Trust: Retirement Money
Market Portfolio.
INFORMATION RESOURCES, INC.
By: ______________________
Date
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SCHEDULE "D"
[ADMINISTRATOR'S LETTERHEAD]
Xx. Xxxxxxx Xxxxxx
Fidelity Investments Institutional Operations Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
[NAME OF PLAN]
*** NOTE: This schedule should contain names and signatures for ALL
individuals who will be providing directions to Fidelity
representatives in connection with the Plan.
Fidelity representatives will be unable to accept directions from any
individual whose name does not appear on this schedule.***
Dear Xx. Xxxxxx:
This letter is sent to you in accordance with Section 7(b) of the Trust
Agreement, dated as of [date], between [name of Plan Sponsor] and Fidelity
Management Trust Company. [I or We] hereby designate [name of individual],
[name of individual], and [name of individual], as the individuals who may
provide directions upon which Fidelity Management Trust Company shall be fully
protected in relying. Only one such individual need provide any direction. The
signature of each designated individual is set forth below and certified to be
such.
You may rely upon each designation and certification set forth in this
letter until [I or we] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[ADMINISTRATOR]
By
[signature of designated individual]
------------------------------------
[name of designated individual]
[signature of designated individual]
------------------------------------
[name of designated individual]
[signature of designated individual]
------------------------------------
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[name of designated individual]
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SCHEDULE "E"
[NAMED FIDUCIARY'S LETTERHEAD]
Xx. Xxxxxxx Xxxxxx
Fidelity Investments Institutional Operations Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
[NAME OF PLAN]
Dear Xx. Xxxxxx:
This letter is sent to you in accordance with Section 7(c) of the Trust
Agreement, dated as of [date], between [name of Plan Sponsor] and Fidelity
Management Trust Company. [I or We] hereby designate [name of individual],
[name of individual], and [name of individual], as the individuals who may
provide directions upon which Fidelity Management Trust Company shall be fully
protected in relying. Only one such individual need provide any direction. The
signature of each designated individual is set forth below and certified to be
such.
You may rely upon each designation and certification set forth in this
letter until [I or we] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[NAMED FIDUCIARY]
By
[signature of designated individual]
------------------------------------
[name of designated individual]
[signature of designated individual]
------------------------------------
[name of designated individual]
[signature of designated individual]
------------------------------------
[name of designated individual]
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SCHEDULE "F"
[LAW FIRM LETTERHEAD]
**NOTE : THE PLAN S IRS DETERMINATION LETTER MAY BE SUBSTITUTED; PROVIDED IT IS
NOT MORE THAN TWO YEARS OLD.
Xxxxxxx Xxxxxx
Fidelity Institutional Retirement
Services Company
00 Xxxxxxxxxx Xxxxxx - XX0X
Xxxxxx, XX 00000
[NAME OF PLAN]
Dear Xx. Xxxxxx:
In accordance with your request, this letter sets forth our opinion with
respect to the qualified status under section 401(a) of the Internal Revenue
Code of 1986 (including amendments made by the Employee Retirement Income
Security Act of 1974) (the "Code"), of the [name of plan], as amended to the
date of this letter (the "Plan").
The material facts regarding the Plan as we understand them are as follows.
The most recent favorable determination letter as to the Plan's qualified status
under section 401(a) of the Code was issued by the [location of Key District]
District Director of the Internal Revenue Service and was dated [date] (copy
enclosed). The version of the Plan submitted by [name of company] (the
"Company") for the District Director's review in connection with this
determination letter did not contain amendments made effective as of [date].
These amendments, among other matters, [brief description of amendments].
[Subsequent amendments were made on [date] to amend the provisions dealing with
[brief description of amendments].]
The Company has informed us that it intends to submit the Plan to the
[location of Key District] District Director of the Internal Revenue Service and
to request from him a favorable determination letter as to the Plan's qualified
status under section 401(a) of the Code. The Company may have to make some
modifications to the Plan at the request of the Internal Revenue Service in
order to obtain this favorable determination letter, but we do not expect any of
these modifications to be material. The Company has informed us that it will
make these modifications.
Based on the foregoing statements of the Company and our review of the
provisions of the Plan, it is our opinion that the Internal Revenue Service will
issue a favorable determination letter as to the qualified status of the Plan,
as modified at the request of the Internal Revenue Service, under section 401(a)
of the Code, subject to the customary condition that continued qualification of
the Plan, as modified, will depend on its effect in operation.
Sincerely,
[name of law firm]
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By [signature]
-----------------
[name of partner]
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SCHEDULE "G"
TELEPHONE EXCHANGE PROCEDURES
-----------------------------
The following telephone exchange procedures are currently employed by Fidelity
Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours are 8:30 a.m. (ET) to 8:00 p.m. (ET) on each business
day. A "business day" is any day on which the New York Stock Exchange is open.
FIRSCO reserves the right to change these telephone exchange procedures at its
discretion.
EXCHANGES BETWEEN MUTUAL FUNDS
------------------------------
Participants may call on any business day to exchange between the mutual
funds. If the request is received before 4:00 p.m. (ET), it will receive
that day's trade date. Calls received after 4:00 p.m. (ET) will be
processed on a next day basis.
INFORMATION RESOURCES, INC.
By: _____________________
Date
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