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EXHIBIT 99.3
INFORMATION RESOURCES, INC.
NON-QUALIFIED DEFINED CONTRIBUTION PLAN TRUST
THIS TRUST AGREEMENT ("AGREEMENT") is made and entered into by
Information Resources, Inc., an Illinois corporation (the "Company"), and
LaSalle Bank National Association, and its successor or successors and assigns
in the trust hereby evidenced, as trustee (the "Trustee"), effective as of
December 3, 1999.
WITNESSETH:
WHEREAS, the Company has adopted the Information Resources, Inc.
Non-Qualified Defined Contribution Plan, effective as of December 3, 1999 (the
"Plan"), for the benefit of its employees; and
WHEREAS, the Plan is designed to invest in shares of the Company's
common stock (the "Common Stock"), and is not intended to qualify under Section
401(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Company wishes to establish a trust (the "Trust") and to
contribute to the Trust shares of the Company's Common Stock that shall be held
therein, until paid to the participants of the Plan or their beneficiaries in
such manner and at such times as specified in the Plan; and
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
ARTICLE I
INTRODUCTION
1.01 The Trust, the Plan, Participants. This Agreement and the Trust
hereby evidenced shall be known as the "Information Resources, Inc.
Non-Qualified Defined Contribution Plan Trust." The purpose of the Trust is to
hold shares of Common Stock and any other property (including cash) that may be
contributed by the Company in accordance with the provisions of the Plan for
allocation to designated Participants and their beneficiaries, which employees
and beneficiaries are referred to herein as "Participants."
1.02 Status of Trust. The Trust is intended to constitute a nonexempt
employees' trust under Section 402(b) of the Internal Revenue Code, as amended,
and shall be construed accordingly.
(a) The Trustee shall accept an initial contribution from the
Company of Common Stock of the type and kind described in the Plan
("Company Stock"). Additional contributions may be made in Company
Stock or cash in accordance with the provisions of the Plan.
(b) The Trust shall be a domestic nonexempt employees' trust
established upon its approval by the Board of Directors.
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(c) The principal of the Trust, and any earnings thereon, shall
be used exclusively to pay expenses of the Trust and benefits to the
Participants as set forth herein and in the Plan.
1.03 Acceptance. The Trustee accepts the duties and obligations of
the Trustee hereunder, agrees to accept delivery of property delivered to it by
the Company pursuant to paragraph 1.02 of this Agreement, and agrees to hold
such property (and any proceeds from the investment of such property) in trust
in accordance with this Agreement.
1.04 The Committee. The committee that is responsible for the
administration of the Plan is the committee appointed by the Board to administer
the Plan pursuant to Section 8.01 of the Plan (the "Committee"). The Committee
has certain powers, rights and duties under this Agreement as described below.
The Trustee may request from time to time that an officer of the Company certify
to the Trustee the person or persons who are acting as the members of the
Committee or who have been delegated the authority to act on behalf of the
Committee. The Trustee may rely on the latest certificate received without
further inquiry or verification.
ARTICLE II
MANAGEMENT OF THE TRUST ASSETS
2.01 The Trust Assets. Unless the context clearly implies or
indicates otherwise, the term "Trust Assets" means the Company Stock and all
other Company contributions, together with all accumulations, accruals,
earnings, and income with respect thereto, held under this Agreement by the
Trustee or any custodian.
2.02.1 Trustee's General Powers, Rights and Duties. Notwithstanding any
powers granted to the Trustee pursuant to this Agreement or to applicable law,
the Trustee shall not have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within the meaning of
section 301.7701-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code. With respect to the Trust Assets, and
subject to the limitations expressly provided in the Plan or this Agreement or
imposed by applicable law (including the powers reserved to the Committee or the
Company), the Trustee shall have the following powers, rights and duties in
addition to those vested in it elsewhere in the Plan or this Agreement or by
law:
(a) In accordance with the terms of the Plan and this Agreement,
as directed by the Committee. the Trustee shall hold, manage,
administer, and distribute the Trust Assets for the payment of Trust
expenses and for the exclusive benefit of Participants and their
Beneficiaries.
(b) As directed by the Committee, the Trustee may also place
Trust Assets in various deposit accounts offered by any bank or savings
and loan association, including the Trustee, invest in other securities
or investments desirable for the Trust, or in any kind of investment
fund, or Trust Assets may be held temporarily in cash.
(c) To vote stock and other voting securities personally or by
proxy, provided, however, that the Trustee shall have no discretion and
shall be required to vote, tender or exchange shares of Stock held by
the Trustee as follows: (i) shares of Stock allocated to a
Participant's Stock Account shall be voted, tendered or exchanged, as
applicable, in accordance with any instructions received from such
Participant or such Participant's authorized
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representative pursuant to a duly executed power of attorney or similar
instrument, (ii) shares of Stock held in a Participant's Stock Account
with respect to which the Trustee does not receive instructions shall
not be voted, tendered or exchanged, as applicable, and (iii) shares of
Stock held in the Unallocated Stock Account shall be voted, tendered or
exchanged, as applicable, in the same proportion as the shares of Stock
allocated to Participants' Stock Accounts with respect to which
instructions are received by the Trustee are voted, tendered or
exchanged.
(d) To exercise any options, subscription rights and conversion
privileges with respect to any Trust Assets.
(e) To participate in reorganizations, consolidations, mergers,
dissolutions, recapitalizations, refinancings and similar transactions
with respect to the Company Stock or any other securities.
(f) With the approval of the Committee, to borrow from anyone,
including any bank acting as Trustee, to the extent permitted by law,
such amounts from time to time as the Trustee considers desirable to
carry out this Trust (and to mortgage, pledge, lease, or otherwise
dispose of, or grant options with respect to, all or part of the Trust
Assets).
(g) To give general or specific proxies or powers of attorney
with or without powers of substitution.
(h) To make payments from the Trust Assets for Trust expenses
and to provide benefits that have become payable under the Plan or
pursuant to paragraph 4.06 of this Agreement.
(i) To maintain in the Trustee's discretion any litigation the
Trustee considers necessary in connection with the Trust Assets,
subject to paragraph 4.04 of this Agreement.
(j) To maintain accurate and detailed records of all
investments, receipts, disbursements, and all other transactions of the
Trust, including such other records as the Committee specifies and the
Trustee agrees to, which records may be audited from time to time by
the Committee or anyone named by the Committee. However, the Trustee
shall not be responsible for maintaining the records of Participants'
Accounts under the Plan, for the administration of the Plan, or for the
computation of Company contributions to the Plan.
(k) To furnish periodic accounts to the Committee for such
periods as the Committee may specify, showing all investments,
receipts, disbursements and other transactions involving the Trust
during the applicable period. Within sixty (60) days following the
close of each calendar year and within sixty (60) days after the
removal or resignation of the Trustee, the Trustee shall deliver to the
Committee a written account of its administration of the Trust during
such year or during the period from the close of the last preceding
year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by
it, including a description of all securities and investments purchased
and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and
showing all cash, securities and other property held in the Trust at
the end of such year or as of the date of such removal or resignation,
as the case may be, and the fair market value as of the end of the year
of every asset held in the Trust and the amount and
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nature of each liability of the Trust. The Committee may approve such
accounting by written notice of approval delivered to the Trustee or by
failure to express objection to such accounting in writing delivered to
the Trustee within six (6) months from the date upon which the
accounting was delivered to the Committee.
(l) To furnish the Company with such information in the
Trustee's possession as the Company may request for tax or other
purposes.
(m) To employ agents, attorneys, accountants, and other persons
(who also may be employed by the Company or the Committee), to delegate
discretionary powers to such persons, and to reasonably rely upon
information and advice furnished by such persons; provided that each
such delegation and the acceptance thereof by each such person shall be
in writing; and provided further that the Trustee may not delegate its
responsibilities as to the management or control of the Trust Assets.
(n) To perform all other acts which in the Trustee's judgment
are appropriate for the proper management, investment and distribution
of the Trust Assets.
2.02 Standard of Care. The Trustee shall act with the care, skill,
prudence and diligence under the circumstances then prevailing that a prudent
person acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims, provided,
however, that the Trustee shall incur no liability to any person for any action
taken pursuant to a direction, request or approval given by the Company or the
Committee, as appropriate, which is contemplated by, and in conformity with, the
terms of the Plan or this Trust and is given in writing by the Company or the
Committee, as appropriate. In the event of a dispute between the Company and a
party, the Trustee may apply to a court of competent jurisdiction to resolve the
dispute.
2.03 Company's Right to Substitute Assets. The Company shall have the
right at any time, and from time to time in its sole discretion, to substitute
assets of equal fair market value for any asset held by the Trust. This right is
exercisable by the Company in a nonfiduciary capacity without the approval or
consent of any person in a fiduciary capacity.
ARTICLE III
MANNER OF ACTION OF THE COMMITTEE
The Committee members may act by meeting, or by writing signed without
meeting, and may sign any document by signing one document or concurrent
documents. If a member of the Committee is a Participant, he or she may not
decide any matter or question concerning any payments to be made to him or her
from the Trust (other than matters or questions that he or she would have the
right to decide even he or she were not a member of the Committee). Action by
the Committee may be taken, at a meeting of the Committee, by the vote of a
majority of the Committee's disinterested members. Any written action in lieu of
a meeting must be by consent of a majority of all disinterested members of the
Committee, and action so taken shall be fully as effective as if it had been
taken by a vote at a meeting. The determinations of the Committee on all matters
relating to the Plan shall be final, binding and conclusive.
ARTICLE IV
GENERAL PROVISIONS
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4.01 Non-Reversion. Subject to the provisions of paragraphs 2.03,
6.01 and 6.02 of this Agreement and the corresponding sections of the Plan, the
Trust is irrevocable, and at no time shall any part of the assets of the Trust
revert to the Company or be used for or diverted to purposes other than to pay
Trust expenses or for the exclusive benefit of Participants. However, the
Company may, by notice in writing to the Trustee, direct that all or part of the
Trust Assets be transferred to a successor trustee under a trust which is for
the exclusive benefit of such Participants; and thereupon, the Trust Assets, or
any part thereof, shall be paid over, transferred or assigned to said successor
trustee, free from the Trust created hereunder; provided, however, that no part
of the Trust Assets may be used to pay contributions of the Company under any
other plan maintained for the benefit of the Company's employees.
4.02 Non-alienation of Trust Assets. To the extent permitted by law,
the rights or interests of any Participant to any benefits or future payments
hereunder shall not be subject to attachment, garnishment, levy, execution or
other legal or equitable process by any creditor of any such Participant, nor
shall any such Participant have any right to alienate, anticipate, commute,
pledge, encumber or assign (either at law or in equity) any of the benefits or
rights which he or she may expect to receive (contingently or otherwise) under
the Plan, except as expressly provided under the Plan or required by law.
4.03 Nominees. The Trustee may register any Company Stock or other
property held by it as Trust Assets hereunder in its own name or in the name of
its nominees, with or without the addition of words indicating that such
securities are held in a fiduciary capacity, and may hold any securities in
bearer form; but the books and records of the Trustee shall at all times reflect
that all such investments are part of the Trust.
4.04 Litigation. Any final judgment that is not appealed or
appealable and which may be entered in any suit or legal proceeding regarding
this Trust shall be binding and conclusive on the parties hereto and all persons
having or claiming to have an interest in the Trust. In the defense of any suit
or legal proceeding arising in connection with this Trust, the Company shall
have the right to control such defense, including, without limitation, the right
to negotiate, compromise or settle such suit or legal proceeding, in the
Company's sole discretion. The Trustee shall have the right to participate in,
but not control, the defense of any such suit or legal proceeding. In the event
the Company chooses not to control the defense of a suit or legal proceeding
arising in connection with this Trust, the Trustee may undertake such defense in
its discretion. In the event the Trustee undertakes such defense or elects to
participate, the Company shall indemnify the Trustee to the extent provided
under paragraph 4.09 of this Agreement against the Trustee's reasonable costs,
expenses and liabilities (including, without limitation, reasonable attorneys'
fees and expenses) relating thereto except to the extent resulting from the
Trustee's bad faith, fraud or willful criminal act or omission.
4.05 Trustee's Actions Conclusive. Except as otherwise provided by
law, the Trustee's exercise or non-exercise of its powers and discretion in good
faith shall be conclusive on all persons. No one shall be obliged to see to the
application of any money paid or property delivered to the Trustee. The
certificate of the Trustee that it is acting in accordance with this Agreement
will fully protect all persons dealing with the Trustee. If there is a
disagreement between the Trustee and anyone as to any act or transaction
reported in any accounting, the Trustee shall have the right to a settlement of
its account by any proper court.
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4.06 Benefit and Expense Payments. The Trustee shall make
distributions from the Trust Assets in accordance with the provisions of this
paragraph 4.06. Any cash dividends on shares of Stock allocated to a
Participant's Stock Account on the record date for such dividend (regardless of
whether such Participant is vested in such Stock), and any other cash or income
allocated to a Participant's Stock Account, shall be distributed to the
Participant or Beneficiary as soon as practicable following the end of the
calendar quarter in which such dividend or other cash or income is allocated to
the Participant's Stock Account. The Committee shall direct the Trustee in
writing to make distributions from the Trust at such times and in such amounts
of Company Stock and/or cash to or for the benefit of the Participants entitled
thereto under the Plan and to withhold such amounts (whether Company Stock or
cash) as may be necessary to satisfy any applicable federal, state or local
taxes. The Trustee shall forward such withheld amounts to the Company for
reporting and remittance to the appropriate tax authorities. Any undistributed
portion of a Participant's Stock Account under the Plan shall be retained in the
Trust until the Committee directs its distribution. All taxes imposed on the
Trust related to income credited to or attributable to Trust assets, unless paid
by the Company shall be paid from Trust assets and charged against the
Participant Stock Account to which the income is allocated, as though it were
payable directly to the Participant. If distribution is directed in Company
Stock, the Trustee or the Committee shall cause the Company to issue an
appropriate stock certificate to the person entitled thereto, to be delivered to
such person by the Committee. The Trustee shall notify the Committee of any such
payments. Payment shall be made to a Participant from the Trust Assets in
accordance with the terms of the Plan. The Trustee shall be protected in acting
with or without Committee direction under this paragraph and shall be
indemnified and saved harmless as provided in paragraph 4.09 of this Agreement.
4.07 Missing Persons. If any payment directed to be made by the
Trustee from the Trust Assets is not claimed by the person entitled thereto, the
Trustee shall notify the Committee of that fact. Neither the Company, the
Committee nor the Trustee shall have any obligation to search for or ascertain
the whereabouts of any payee under this Trust.
4.08 Liabilities Mutually Exclusive. To the extent permitted by law,
the Company, the Trustee, the Committee and each member thereof shall be
responsible only for his, her or its own acts or omissions. The Trustee shall
not be liable for any action it takes or refrains from taking in accordance with
proper directions of the Committee.
4.09 Indemnification. To the extent permitted by law, neither the
Trustee, nor any present or former Committee member, nor any person who is or
was a director, officer, or employee of the Company, shall be personally liable
for any act done, or omitted to be done, in good faith in the administration of
this Trust. Any person to whom the Committee or the Company has delegated any
portion of its responsibilities under the Trust, any person who is or was a
director or officer of the Company, members and former members of the Committee,
and each of them, shall, to the extent permitted by law, be indemnified and
saved harmless by the Company (to the extent not indemnified or saved harmless
under any liability insurance or other indemnification arrangement with respect
to this Trust) from and against any and all liability or claim of liability to
which they may be subjected by reason of any act done or omitted to be done in
good faith in connection with the administration of the Trust or the investment
of the Trust Assets, including all expenses and settlement payments reasonably
incurred in their defense if the Company fails to provide such defense after
having been requested to do so in writing. The Trustee shall be indemnified and
saved harmless by the Company (to the extent not indemnified or saved harmless
under any liability insurance or other indemnification arrangement with respect
to this Trust) only with respect to liability or claim of liability to which the
Trustee shall be subjected by reason
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of its good faith compliance with this Agreement or with any directions given in
accordance with the provisions of the Trust by the Committee; provided, however,
that to the extent required by Illinois General Corporation law, the payment by
the Company of such defense-related expenses under this paragraph 4.09 to any
such person shall be made prior to the final disposition of the subject
proceeding only upon delivery to the Company of an undertaking, by or on behalf
of such person, to repay all amounts so advanced if it shall ultimately be
determined that such person is not entitled to this indemnification.
Notwithstanding the foregoing, the Company shall not indemnify any person for
any amount incurred by any settlement or compromise of any action unless the
Company consents in writing to such settlement or compromise. The Trustee shall
not be required to pay interest on any portion of the Trust Assets which is held
uninvested at the direction of the Committee.
4.10 Compensation and Expenses. All reasonable costs, charges and
expenses (including taxes imposed on the Trust) incurred by the Trustee pursuant
to this Agreement shall be paid from the Trust Assets to the extent not paid by
the Company, and all other reasonable costs, charges and expenses incurred in
the administration of this Trust shall be paid from the Trust Assets.
4.11 Action by the Company. Any action with respect to this Trust
required or permitted to be taken by the Company shall be by resolution of the
Board, by the Committee, or by a person or persons authorized by resolution of
the Board or the Committee.
4.12 Evidence. Evidence required of anyone under this Agreement shall
be signed, made or presented by the proper party or parties and may be by
certificate, affidavit, document or other information that the person acting on
it considers pertinent and reliable.
4.13 Waiver of Notice. Any notice required under this Agreement may
be waived by the person entitled to receive such notice.
4.14 Counterparts. This Agreement may be executed in two or more
counterparts, any one of which will be an original without reference to the
others.
4.15 Definition and Gender. Capitalized terms not otherwise defined
herein shall have the meaning ascribed thereto under the Plan. Wherever
appropriate herein, the masculine may mean the feminine and the singular may
mean the plural or vice versa.
4.16 Scope of this Agreement. The Plan and this Trust will be binding
on all persons entitled to benefits hereunder and their respective heirs and
legal representatives, and upon the Company, the Committee, the Trustee, and
their successors and assigns.
4.17 Acceptance and Severability. The Trustee accepts this Trust and
agrees to hold the Trust Assets, and all additions and accretions thereto,
subject to all the terms and conditions of the Plan and this Agreement. If any
provision of this Agreement is held to be illegal or invalid, such illegality or
invalidity shall not affect the remaining provisions of this Agreement, and they
shall be construed and enforced as if such illegal or invalid provision had
never been inserted herein.
4.18 Statutory References. Any references in this Agreement directly
or indirectly to a section of the Internal Revenue Code or regulations
promulgated thereunder shall include any comparable section or sections of any
future legislation or regulation that amends, supplements or supersedes the
section referred to in this Agreement.
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4.19 Applicable Law. The Trust shall be construed in accordance with
the laws of the State of Illinois to the extent not pre-empted by Federal Law.
ARTICLE V
RESIGNATION OR REMOVAL OF TRUSTEE
5.01 Resignation or Removal of Trustee. The Trustee may resign at any
time by giving sixty (60) days advance written notice to the Company and the
Committee. The Company or the Committee may remove a Trustee by giving written
notice to the Trustee provided that such removal shall not become effective
until the time immediately preceding the appointment of a successor Trustee
pursuant to paragraph 5.02 of this Agreement.
5.02 Successor Trustees. In the event of the resignation or removal
of the Trustee, a successor Trustee shall be appointed by the Company in writing
as soon as practicable. The Company shall give written notice of such
appointment to the predecessor Trustee.
5.03 Duties of Predecessor Trustee and Successor Trustee. A Trustee
that resigns or is removed shall, within sixty (60) days of such event, furnish
to the Committee and the successor Trustee a final account of its administration
of the Trust. A successor Trustee shall succeed to the right and title of the
predecessor Trustee in the assets of the Trust Assets and the predecessor
Trustee shall deliver the property comprising the Trust Assets to the successor
Trustee together with any instruments of transfer, conveyance, assignment and
further assurances as the successor Trustee may reasonably require. All records
concerning the Plan and the Trust are property of the Company and shall be
transferred to the Company or the successor Trustee, at the Company's sole
direction. Each successor Trustee shall have all the powers, rights and duties
conferred by this Agreement as if named the initial Trustee. Subject to
applicable law, no successor Trustee shall be personally liable for any act or
failure to act of a predecessor Trustee.
ARTICLE VI
AMENDMENT AND TERMINATION
6.01 Amendment. This Trust may be amended from time to time by the
Company, except as follows:
(a) No such amendment shall cause the reduction or cessation of
any vested interests of any Participant or materially reduce or
otherwise materially impair the rights of a Participant in respect of
cash or Stock allocated to his or her Stock Account except with the
consent of such Participant;
(b) No amendment to the Trust may be made which would cause or
permit any part of the assets of the Trust or the income therefrom to
be used for, or diverted to, purposes other than for the payment of
expenses of the Trust or for the exclusive benefit of Participants, or
which would cause any part of the assets of the Trust to revert to or
become the property of the Company;
(c) The duties and liabilities of the Trustee cannot be changed
substantially without the consent of the Trustee; and
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(d) The Trust may not be amended to make the Trust revocable.
6.02 Termination. Except as otherwise provided in this paragraph
6.02, this Trust shall not terminate, and all the rights, titles, powers,
duties, discretions and immunities on or reserved to the Trustee, the Company
and the Committee shall continue in effect with respect to the Trust, until all
benefits payable to Participants under the Plan have been paid and all assets
have been distributed by the Trustee under the Trust and the Plan.
Notwithstanding any other provision of this Trust, the Trust shall terminate one
day prior to the expiration of a period of twenty-one (21) years after the death
of the last to die of all Participants in the Plan who were Employees of the
Company on the effective date of this Trust Agreement. Upon the written approval
of all Participants entitled to payment of benefits pursuant to the terms of the
Plan, the Company may terminate this Trust prior to the time all benefit
payments payable under the Plan have been made.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Agreement to be executed on their behalf and by their respective officers
thereunto duly authorized.
ATTEST/WITNESS INFORMATION RESOURCES, INC.
By
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Its
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ATTEST/WITNESS LASALLE BANK
NATIONAL ASSOCIATION
By
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Its
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