EXHIBIT 10(LL)
FIRST AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
INFORMATION RESOURCES, INC.
THIS FIRST AMENDMENT, effective as of the first day of March, 1997, by and
between Fidelity Management Trust Company (the "Trustee") and Information
Resources, Inc. (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Trust
Agreement dated July 1, 1996, with regard to the Information Resources, Inc.
401(k) Retirement Savings Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending Section 4(b) by adding the following subsection where
appropriate:
(iii) equity securities issued by the Sponsor or an affiliate which
are publicly-traded and which are "qualifying employer securities" within the
meaning of section 407(d)(5) of ERISA ("Sponsor Stock").
(2) Amending Section 4 by inserting the following new Section 4(g) and
relettering existing subsections and any cross references accordingly:
(g) Sponsor Stock. Trust investments in Sponsor Stock shall be made
via the Information Resources Stock Fund (the "Sponsor Stock Fund")
which shall consist of shares of Sponsor Stock and short-term liquid
investments, including Fidelity Institutional Cash Portfolios: Money
Market Portfolio: Class 1 or such other Mutual Fund or commingled
money market pool as agreed to by the Sponsor and Trustee, necessary
to satisfy the Fund's cash needs for transfers and payments. A cash
target range shall be maintained in the Sponsor Stock Fund. Such
target range may be changed as agreed to in writing by the Sponsor and
the Trustee. The Trustee is responsible for ensuring that the actual
cash held in the Sponsor Stock Fund falls within the agreed upon range
over time. Each Participant's proportional interest in the Sponsor
Stock Fund shall be measured in units of participation, rather than
shares of Sponsor Stock. Such units shall represent a proportionate
interest in all of the assets of the Sponsor Stock Fund, which
includes shares of Sponsor Stock, short-term investments and at times,
receivables
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for dividends and/or Sponsor Stock sold and payables for Sponsor Stock
purchased. A Net Asset Value ("NAV") per unit will be determined
daily for each unit outstanding of the Sponsor Stock Fund. The return
earned by the Sponsor Stock Fund will represent a combination of the
dividends paid on the shares of Sponsor Stock held by the Sponsor
Stock Fund, gains or losses realized on sales of Sponsor Stock,
appreciation or depreciation in the market price of those shares
owned, and interest on the short-term investments held by the Sponsor
Stock Fund. Dividends received by the Sponsor Stock Fund are
reinvested in additional units of the Sponsor Stock Fund. Investments
in Sponsor Stock shall be subject to the following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust may be
invested in Sponsor Stock to the extent necessary to comply with
investment directions under Section 4(c) of this Agreement.
(ii) Fiduciary Duty of Named Fiduciary. The Named Fiduciary
shall continually monitor the suitability under the fiduciary duty
rules of section 404(a)(1) of ERISA (as modified by section 404(a)(2)
of ERISA) of acquiring and holding Sponsor Stock. The Trustee shall
not be liable for any loss, or by reason of any breach, which arises
from the directions of the Named Fiduciary with respect to the
acquisition and holding of Sponsor Stock, unless it is clear on their
face that the actions to be taken under those directions would be
prohibited by the foregoing fiduciary duty rules or would be contrary
to the terms of the Plan or this Agreement.
(iii) Execution of Purchases and Sales.
(A) Purchases and sales of Sponsor Stock (other than for
exchanges) shall be made on the open market 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 purchases, the subsequent date on which the
Trustee has received a wire transfer of the funds necessary to make
such purchases). Exchanges of Sponsor Stock shall be made in
accordance with the Telephone Exchange Guidelines attached hereto as
Schedule "G". Such general rules shall not apply in the following
circumstances:
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(1) If the Trustee is unable to purchase or sell
the total number of shares required to be purchased or sold on such
day as a result of market conditions; or
(2) If the Trustee is prohibited by the
Securities and Exchange Commission, the New York Stock Exchange, or
any other regulatory body from purchasing or selling any or all of the
shares required to be purchased or sold on such day.
In the event of the occurrence of the circumstances described in (1)
or (2) above, the Trustee shall purchase or sell such shares as soon
as possible thereafter and shall determine the price of such purchases
or sales to be the average purchase or sales price of all such shares
purchased or sold, respectively. The Trustee may follow directions
from the Named Fiduciary to deviate from the above purchase and sale
procedures provided that such direction is made in writing by the
Named Fiduciary.
(B) Purchases and Sales from or to Sponsor. If directed
by the Sponsor in writing prior to the trading date, the Trustee may
purchase or sell Sponsor Stock from or to the Sponsor if the purchase
or sale is for adequate consideration (within the meaning of section
3(18) of ERISA) and no commission is charged. If Sponsor
contributions or contributions made by the Sponsor on behalf of the
Participants under the Plan are to be invested in Sponsor Stock, the
Sponsor may transfer Sponsor Stock in lieu of cash to the Trust. In
either case, the number of shares to be transferred will be determined
by dividing the total amount of Sponsor Stock to be purchased or sold
by the 4:00 p.m. closing price of the Sponsor Stock on the New York
Stock Exchange on the trading date.
(C) Use of an Affiliated Broker. The Sponsor hereby
directs the Trustee to use Fidelity Brokerage Services, Inc. ("FBSI")
to provide brokerage services in connection with any purchase or sale
of Sponsor Stock in accordance with directions from Plan Participants.
FBSI shall execute such directions directly or through its affiliate,
National Financial Services Company ("NFSC"). The provision of
brokerage services shall be subject to the following:
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(1) As consideration for such brokerage services,
the Sponsor agrees that FBSI shall be entitled to remuneration under
this authorization provision in the amount of three and one-half cents
($.035) commission on each share of Sponsor Stock. Any change in such
remuneration may be made only by a signed agreement between Sponsor
and Trustee.
(2) Following the procedures set forth in
Department of Labor Prohibited Transaction Class Exemption 86-128, the
Trustee will provide the Sponsor with the following documents: (1) a
description of FBSI's brokerage placement practices; (2) a copy of
PTCE 86-128; and (3) a form by which the Sponsor may terminate this
authorization to use a broker affiliated with the Trustee. The
Trustee will provide the Sponsor with this termination form annually.
(3) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions, shall,
upon consumption of such transaction, become the successor broker in
accordance with the terms of this authorization provision.
(4) The Trustee and FBSI shall continue to rely on
this authorization provision until notified to the contrary. The
Sponsor reserves the right to terminate this authorization upon
written notice to FBSI (or its successor) and the Trustee, in
accordance with Section 11 of this Agreement.
(iv) Securities Law Reports. The Named Fiduciary shall be
responsible for filing all reports required under Federal or state
securities laws with respect to the Trust's ownership of Sponsor
Stock, including, without limitation, any reports required under
section 13 or 16 of the Securities Exchange Act of 1934, and shall
immediately notify the Trustee in writing of any requirement to stop
purchases or sales of Sponsor Stock pending the filing of any report.
The Trustee shall provide to the Named Fiduciary such information on
the Trust's ownership of Sponsor Stock as the Named Fiduciary may
reasonably request in order to comply with Federal or state securities
laws.
(v) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement, the provisions of this Section shall
govern the voting and tendering of
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Sponsor Stock. The Sponsor, after consultation with the Trustee,
shall provide and pay for all printing, mailing, tabulation and other
costs associated with the voting and tendering of Sponsor Stock.
(A) Voting.
(1) When the issuer of the Sponsor Stock prepares
for any annual or special meeting, the Sponsor shall notify the
Trustee thirty (30) days in advance of the intended record date and
shall cause a copy of all materials to be sent to the Trustee. Based
on these materials the Trustee shall prepare a voting instruction
form. At the time of mailing of notice of each annual or special
stockholders' meeting of the issuer of the Sponsor Stock, the Sponsor
shall cause a copy of the notice and all proxy solicitation materials
to be sent to each Plan Participant with an interest in Sponsor Stock
held in the Trust, together with the foregoing voting instruction form
to be returned to the Trustee or its designee. The form shall show
the proportional interest in the number of full and fractional shares
of Sponsor Stock credited to the Participant's accounts held in the
Sponsor Stock Fund. The Sponsor shall provide the Trustee with a copy
of any materials provided to the Participants and shall certify to the
Trustee that the materials have been mailed or otherwise sent to
Participants.
(2) Each Participant with an interest in the
Sponsor Stock Fund shall have the right to direct the Trustee as to
the manner in which the Trustee is to vote (including not to vote)
that number of shares of Sponsor Stock reflecting such Participant's
proportional interest in the Sponsor Stock Fund (both vested and
unvested). Directions from a Participant to the Trustee concerning
the voting of Sponsor Stock shall be communicated in writing, or by
mailgram or similar means. These directions shall be held in
confidence by the Trustee and shall not be divulged to the Sponsor, or
any officer or employee thereof, or any other person. Upon its
receipt of the directions, the Trustee shall vote the shares of
Sponsor Stock reflecting the Participant's proportional interest in
the Sponsor Stock Fund as directed by the Participant. The Trustee
shall not vote shares of Sponsor Stock reflecting a Participant's
proportional interest in the Sponsor Stock Fund for which it has
received no direction from the Participant.
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(3) The Trustee shall vote that number of shares of
Sponsor Stock not credited to Participants' accounts in the same
proportion on each issue as it votes those shares credited to
particpants' accounts for which it received voting directions from
Participants.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any
securities held in the Trust that are Sponsor Stock, the Sponsor shall
notify each Plan Participant with an interest in such Sponsor Stock of
the tender offer and utilize its best efforts to timely distribute or
cause to be distributed to the Participant the same information that
is distributed to shareholders of the issuer of Sponsor Stock in
connection with the tender offer, and, after consulting with the
Trustee, shall provide and pay for a means by which the Participant
may direct the Trustee whether or not to tender the Sponsor Stock
reflecting such Participant's proportional interest in the Sponsor
Stock Fund (both vested and unvested). The Sponsor shall provide the
Trustee with a copy of any material provided to the Participants and
shall certify to the Trustee that the materials have been mailed or
otherwise sent to Participants.
(2) Each Participant shall have the right to direct
the Trustee to tender or not to tender some or all of the shares of
Sponsor Stock reflecting such Participant's proportional interest in
the Sponsor Stock Fund (both vested and unvested). Directions from a
Participant to the Trustee concerning the tender of Sponsor Stock
shall be communicated in writing, or by mailgram or such similar means
as is agreed upon by the Trustee and the Sponsor under the preceding
paragraph. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly
communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The Trustee shall
tender or not tender shares of Sponsor Stock as directed by the
Participant. The Trustee shall not tender shares of Sponsor Stock
reflecting a Participant's proportional interest in the Sponsor Stock
Fund for which it has received no direction from the Participant.
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(3) The Trustee shall tender that number of shares
of Sponsor Stock not credited to Participants' accounts in the same
proportion as the total number of shares of Sponsor Stock credited to
Participants' accounts for which it has received instructions from
Participants.
(4) A Participant who has directed the Trustee to
tender some or all of the shares of Sponsor Stock reflecting the
Participant's proportional interest in the Sponsor Stock Fund may, at
any time prior to the tender offer withdrawal date, direct the Trustee
to withdraw some or all of the tendered shares reflecting the
Participant's proportional interest, and the Trustee shall withdraw
the directed number of shares from the tender offer prior to the
tender offer withdrawal deadline. Prior to the withdrawal deadline,
if any shares of Sponsor Stock not credited to Participants' accounts
have been tendered, the Trustee shall redetermine the number of shares
of Sponsor Stock that would be tendered under Section 4(g)(v)(B)(3) if
the date of the foregoing withdrawal were the date of determination,
and withdraw from the tender offer the number of shares of Sponsor
Stock not credited to Participants' accounts necessary to reduce the
amount of tendered Sponsor Stock not credited to Participants'
accounts to the amount so redetermined. A Participant shall not be
limited as to the number of directions to tender or withdraw that the
Participant may give to the Trustee.
(5) A direction by a Participant to the Trustee to
tender shares of Sponsor Stock reflecting the Participant's
proportional interest in the Sponsor Stock Fund shall not be
considered a written election under the Plan by the Participant to
withdraw, or have distributed, any or all of his withdrawable shares.
The Trustee shall credit to each proportional interest of the
Participant from which the tendered shares were taken the proceeds
received by the Trustee in exchange for the shares of Sponsor Stock
tendered from that interest. Pending receipt of directions (through
the Administrator) from the Participant or the Named Fiduciary, as
provided in the Plan, as to which of the remaining investment options
the proceeds should be invested in, the Trustee shall invest the
proceeds in the Mutual Fund described in Schedule "C".
(vi) Shares Credited. For all purposes of this Section, the
number of shares of Sponsor Stock deemed "credited" to a Participant's
accounts as of the relevant date (the record date or the date
specified in a tender offer) shall be calculated by reference to
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the number of shares reflected on the books of the transfer agent as
of the relevant date. In the case of a tender, the number of shares
credited shall be determined as of a date as closely administratively
feasible to the relevant date. For all purposes of this Section, the
number of shares of Sponsor Stock deemed "credited" or "reflected" to
a Participant's proportional interest shall be determined as of the
last preceding valuation date. The trade date is the date the
transaction is valued.
(vii) General. With respect to all rights other than the right
to vote, the right to tender, and the right to withdraw shares
previously tendered, in the case of Sponsor Stock credited to a
Participant's proportional interest in the Sponsor Stock Fund, 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 duty to solicit directions from Participants.
With respect to all rights other than the right to vote and the right
to tender, in the case of Sponsor Stock not credited to Participants'
accounts, the Trustee shall follow the directions of the Named
Fiduciary.
(viii) Conversion. All provisions in this Section 4(g) shall
also apply to any securities received as a result of a conversion of
Sponsor Stock.
(3) Adding the following to the "investment options" portion of Schedules
"A" and "C," respectively:
Information Resources Stock Fund (Sponsor Stock Fund)
(4) Amending Schedule "B" by adding the following fee:
Trustee Fee
To the extent that assets are invested in Sponsor Stock,
.10% of such assets in the Trust payable pro rata quarterly on the
basis of such assets as of the calendar quarter's last valuation date,
with an annual minimum of $10,000 and an annual maximum of $35,000.
(5) Amending Schedule "C" by restating in its entirety the last sentence
of said Schedule as follows:
The mutual fund advised by Fidelity Management & Research Company
referred to in Sections 4(c) and 4(g)(v)(B)(5) shall be Fidelity Money
Market Trust: Retirement Money Market Portfolio.
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(6) Amending Schedule "G" by adding the following at the end thereof:
SPONSOR STOCK FUND
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EXCHANGES BETWEEN MUTUAL FUNDS AND THE SPONSOR STOCK FUND
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Participants may call on any business day to exchange between the
mutual funds and the Sponsor Stock Fund. 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.
EXCHANGE RESTRICTIONS
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Investments in the Sponsor Stock Fund will consist primarily of shares
of Sponsor Stock. However, in order to satisfy daily Participant
requests for exchanges, loans and withdrawals, the Sponsor Stock Fund
will also hold cash or other short-term liquid investments in an
amount that has been agreed to in writing by the Sponsor and the
Trustee. The Trustee will be responsible for ensuring that the
percentage of these investments falls within the agreed upon range
over time. However, if there is insufficient liquidity in the Sponsor
Stock Fund to allow for such activity, the Trustee will sell shares of
Sponsor Stock in the open market. Exchange and redemption
transactions will be processed as soon as proceeds from the sale of
Sponsor Stock are received.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this First
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
INFORMATION RESOURCES, INC. FIDELITY MANAGEMENT TRUST
COMPANY
By By
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Date Vice President Date
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