ADMINISTRATIVE SERVICES AGREEMENT FOR
THE NON-QUALIFIED DEFERRED COMPENSATION PLAN DOCUMENT
BY
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
This AGREEMENT is made and entered into by and between MicroAge, Inc. (the
"Employer") on behalf of the MicroAge, Inc. Executive Supplemental Savings Plan
(the "Plan"), and The Prudential Insurance Company of America ("Prudential"), a
New Jersey mutual life insurance company.
The Employer represents and Prudential acknowledges that:
* The Plan is or will be in existence at the time funds are deposited
with Prudential;
* The Plan document is, or will be by the effective date of this
Agreement, a Prudential approved non-Qualified Deferred compensation
Plan document;
* If a related Trust (the "Trust") is established, the Trust will be an
Employer grantor trust commonly known as a "Rabbi Trust.'
* The Plan is intended to be an unfunded plan for a select group of
management or highly compensated employees, within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
known as a "Top Hat" plan.
* The Employer has consulted with legal counsel, to the extent it sees
fit, and has taken, or will take by the effective date of this
agreement, all steps necessary to comply with Federal or state
securities laws that might relate to the Plan.
* The Employer, as Plan Administrator, desires Prudential to perform
certain administrative services for the Plan and to provide certain
assistance to the Employer as more fully described in this Agreement,
and Prudential is willing to perform those services.
In consideration of the premises and mutual covenants contained in this
Agreement, the Employer and Prudential agree as follows:
1. SERVICES:
a) SERVICES TO BE RENDERED BY PRUDENTIAL - Prudential will perform the
following services:
i) PLAN RECORDKEEPING - Prudential will provide to the Plan the
record-keeping services included in Exhibit A to this Agreement.
ii) Plan Documentation and Disclosure Services -
Prudential will provide Plan services support to the
Plan as described in Exhibit B to this Agreement.
iii) Additional Services - In addition to the foregoing
services, Prudential may provide such other services,
and be paid such amounts therefor, as may from time
to time be agreed upon in writing by the parties.
b) NATURE OF SERVICES -
i) RECORDKEEPING ONLY - The Employer understands and agrees that
Prudential's sole function under this Agreement is to act as
recordkeeper and to provide other services at the direction of
the Employer or its agents or designee in accordance with the
terms of this Agreement. Under the terms of this Agreement,
Prudential does not render investment advice, is not the Plan
Administrator, trustee or a Plan fiduciary, as that term is
defined under the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and does not provide legal, tax or
accounting advice with respect to the creation, adoption or
operation of the Plan and Trust. Any services to be provided by a
Prudential affiliate as directed trustee or investment manager
are the subject of a separate agreement. Prudential acknowledges,
however, that the Plan is intended to constitute a participant
directed individual account plan under Section 404(c) of the
Employee Retirement Income Security Act of 1974, as amended, and
shall take any reasonable steps necessary to comply with that
Section and the regulations promulgated thereunder.
ii) DISCONTINUANCE OF SERVICES INCONSISTENT WITH ROLE - If, based on
changes in the applicable regulatory structure or the
interpretation of the regulatory structure, there is a reasonable
likelihood that any service being, or to be, provided under this
Agreement by Prudential could constitute a discretionary function
and thereby subject Prudential to classification as a "fiduciary"
under ERISA with respect to the Plan, and such service could not
be restructured in a manner that would not subject Prudential to
classification as a "fiduciary" under ERISA, then Prudential,
upon reasonable notice to the Employer may decline to thereafter
provide that service. The failure to provide any such service
shall not constitute a breach of Prudential's obligations under
this Agreement.
c) RELIANCE UPON PLAN DATA - All services provided by Prudential
hereunder shall be based on information supplied by the Employer or
any other designee or agent of the Employer (as designated by the
Employer). The Employer acknowledges that the timely provision of
accurate, consistent and complete data in the format specified by
Prudential is essential to its delivery of services, and the Employer
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is responsible for ensuring such timely and accurate data is delivered
to Prudential in Prudential's approved format. For these purposes,
"Plan data" means all data and records supplied to Prudential,
obtained by Prudential or produced by Prudential (based on data or
records supplied to, or obtained by, Prudential) in connection with
performing the services pursuant to this Agreement. Plan Data includes
current participant names, addresses and status.
d) RELIANCE UPON NAMED ADMINISTRATORS AND TRUSTEES - The Employer will
provide names and other information for persons authorized to take
actions for or provide information on behalf of the Plan and Trust.
Until notified of a change, Prudential may reasonably rely upon this
information and may act upon instructions received from and/or on
information provided by these named persons. Prudential has the right
to assume that those persons continue to be authorized unless notified
otherwise.
e) RESPONSIBILITIES OF THE EMPLOYER - The Employer agrees that it will be
responsible for and neither Prudential nor any affiliate of Prudential
shall have any obligation to:
i) Monitor or otherwise ensure that the Plan is in compliance with
any applicable Federal or state tax, business, labor or
securities law, including the determination of the appropriate
Federal or state securities registration, the selection of the
Plan Participants, and the calculation and payment of any taxes
or tax withholding with respect to the Plan or Plan benefits;
ii) Complete or file any form, notice, or registration with the
federal, state or local tax, labor or securities authorities with
respect to the Plan, assets held under the Plan or payments from
the Plan, except to the extent tax reporting is specifically
listed in Exhibit A to this Agreement.
2. COMPENSATION: In consideration for its services provided hereunder, the
Employer shall pay Prudential in accordance with the Fee Schedule provided
in Exhibit C. Prudential may amend the schedule for services not yet
rendered upon giving notice in writing under the same conditions specified
in Section 7.b. The Employer shall pay al I fees within thirty (30) days of
the Prudential invoice date. Any fees not paid when due may be deducted by
Prudential from the trust fund, without further notice to the Employer. The
Employer shall pay any and all costs that may be incurred by Prudential in
charging the trust fund for these fees. The Employer also agrees that it
shall empower the Trustee to pay compensation to Prudential for services
provided hereunder. The Employer acknowledges that the Plan document
provides for payment of the fees from the trust fund.
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3. INVESTMENTS; GOOD ORDER:
a) INVESTMENTS-GENERALLY - Prudential will invest all assets of the Trust
only as directed in writing or via any authorized electronic or
telephonic transmission:
i) By Participants - to the extent the Plan provides for investment
direction or request by Participants.
ii) By the Employer - to the extent the Plan provides for investment
direction by the Employer.
b) UNCLEAR INVESTMENT INSTRUCTIONS; GOOD ORDER -
i) UNCLEAR INVESTMENT INSTRUCTIONS - Prudential will forward
contributions and similar transaction receipts for investment
into the Prudential Government Securities Trust/Money Market
Series or another conservative investment fund designated in
writing by the Employer (or an equivalent fund should the named
fund cease to exist) if Prudential determines that no proper
investment directions are in effect. Once proper instructions are
received, Prudential will forward the new instructions so that
contributions can be re-invested and related earnings can be
allocated accordingly.
ii) GOOD ORDER -
a) CONTRIBUTIONS AND SIMILAR TRANSACTIONS - Prudential will use
its best efforts to process all contributions and similar
transactions ("Transactions") received in good order on the
day good order is achieved, PROVIDED, HOWEVER, that
Prudential reserves the right to process all such
Transactions received in good order at Prudential within
thirty-six (36) hours of receipt. Transactions are in "good
order" when the contribution or similar roster remitted by
the Employer agrees with the related funding, and when the
social security number and money type correspond to social
security numbers and money types of participants previously
enrolled on Prudential's recordkeeping system.
In the event Transaction data is NOT IN GOOD ORDER,
Prudential shall attempt to obtain clarification from the
Employer as to the proper Transaction amount and/or funding
allocations. The Employer acknowledges and directs that
Transaction amounts will be deposited in an interest or
non-interest bearing account (at Prudential's discretion)
until such time as the roster, Transaction amount, and
funding allocation are reconciled. In the event Prudential
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is unable, in its sole judgment, to obtain such
clarification within thirty (30) days of receipt of
Transaction amounts, then Prudential shall return all such
Transaction amounts to the Employer pending further
instructions from the Employer. The Employer understands and
agrees that it shall not have any claim against Prudential
or any affiliate of Prudential in the event that Prudential
returns Transaction amounts pursuant to the provision of
this paragraph. The Employer further understands and agrees
that the Plan and the Employer will bear the investment risk
during this period.
b) DISTRIBUTIONS - Prudential will process all distribution
requests received in good order at Prudential within three
(3) business days of receipt of said distribution request by
Prudential. Distribution checks will be issued within seven
(7) days of receipt of good order. Distributions are in
"good order" when the distribution request contains all
pertinent information (including type and form of
distribution, any critical dates needed to process the
distribution, properly completed and executed tax forms and,
if applicable, all necessary rollover instructions) and
appropriate signatures (including spousal consent to the
extent deemed necessary by the Employer).
c) INVESTMENT EXCHANGES - Prudential will process all
investment exchanges on the same terms as Transactions
described in subparagraph a), above. Investment Exchanges
are in Good Order when the information provided in the
request for an investment exchange clearly shows the number
and types of interests to be acquired and disposed of and
reasonably indicates that the transfer is authorized by the
participant or the Employer.
d) NET TRADES - The Employer acknowledges that trades required
by Transactions, distributions, and investment exchanges
will be executed by offsetting transactions ordered in and
out of each investment and purchasing or selling only the
net shares required to balance transactions in an out. The
Employer also acknowledges the share prices allocated to
individual participants will be the price paid or received
for shares actually traded by Prudential for the day the
transactions are processed.
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c) THE EMPLOYER ACKNOWLEDGES THAT IT -
i) Received a prospectus for each of the Prudential mutual funds and
any other mutual funds offered by Prudential in which Plan
participants may invest.
ii) Reviewed such prospectus(es) and is familiar with the fees and
expenses described therein, and that such fees and expenses are
reasonable.
d) FEES TO PRUDENTIAL AFFILIATES - The Employer acknowledges that
Prudential may be deemed to benefit from:
i) Advisory and other fees paid to its affiliates for managing,
selling, or settling of the Prudential mutual funds and other
investment products or securities offered by Prudential or its
affiliates selected as investment options available under that
Plan; and
The Employer also acknowledges that Prudential benefits directly from:
ii) Transfer agent fees paid to it by the Prudential mutual funds and
other investment products offered by Prudential or its
affiliates;
iii) Additional compensation in the form of gains resulting from the
correction of transaction processing errors and delays. In
exchange, Prudential also generally absorbs losses resulting from
its errors. Any gains are available to cover these losses or
losses of other similarly situated customers.
4. USE OF AGENTS OR SUBCONTRACTORS: Prudential may perform any of the services
described in this Agreement through agents and subcontractors selected by
Prudential. Prudential shall reasonably supervise any such agent or
subcontractor and the retention of agents or subcontractors shall not
relieve Prudential of its duties hereunder.
5. PRUDENTIAL NOT LEGAL COUNSEL: The Employer understands and agrees that it
shall review with its legal and/or tax counsel all documents provided to it
by Prudential and that the Employer should consult such counsel on any
questions concerning the Employer's responsibilities under this Agreement,
the Plan's documents, and the legal sufficiency of any documents so
provided. The Employer understands that neither Prudential nor any of its
affiliates are permitted to provide the Employer with legal or tax advice
or otherwise engage in the practice of law. The Employer acknowledges that
it will not rely on any information provided as if it were legal or tax
advice.
6. INDEMNIFICATION:
a) INDEMNIFICATION OF PRUDENTIAL - The Employer shall hold harmless and
indemnify Prudential and its employees, agents, and subcontractors
("Indemnitees") from and against any loss, damage, liability, claims,
costs and expenses, including reasonable attorneys' fees
("Liabilities"), to which the Indemnitees may become subject, which
result from:
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i) Any misrepresentation or nonfulfillment of any terms of this
Agreement by the Plan, the Employer, the Plan Administrator or
other Plan fiduciary (including, but not limited to, Liabilities
resulting from the provision of inaccurate, untimely, or
incomplete information to Prudential or the failure to provide
Prudential with clear instructions as to matters relating to
contributions, investment selections, or distributions).
ii) Any failure by the Plan, the Employer, the Plan Administrator or
other Plan fiduciary to comply with the terms of the Plan,
iii) A violation by the Plan, the Employer, the Plan Administrator or
other Plan fiduciary of the requirements of applicable Federal
and/or state laws,
iv) The making by Prudential of any benefit payment based upon
instructions that Prudential reasonably believes to be
authorized, and
v) Any action, conduct or activity, including the failure to take
action or to perform any activity taken by Prudential at the
direction of the Employer, Plan Administrator or Trustee,
provided that Prudential reasonably believes the direction to be
valid and is not negligent in the execution of such directions.
vi) Any failure by the Employer or the Plan to comply with any
Federal or State laws governing the registration or sale of
securities.
b) INDEMNIFICATION OF THE EMPLOYER - Prudential shall hold harmless and
indemnify the Employer and its employees from and against any loss,
damage, liability, claims, costs and expenses, including reasonable
attorneys' fees, to which the Employer may become subject, which
result from:
i) Any misrepresentation or nonfulfillment of any material terms of
this Agreement by Prudential, and
ii) Prudential's willful misconduct, lack of good faith or want of
reasonable and ordinary care in the performance of its
obligations under this Agreement.
iii) Prudential's provision of investment advice to any Plan
Participant.
iv) Prudential's violation of the requirements of applicable Federal
and/or state laws, except when resulting from the failure to take
action or any action taken at the direction of the Employer, the
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Employer's agent or designee, or Trustee, provided that
Prudential reasonably believes the direction to be valid and is
not negligent in the execution of such directions.
7. DURATION; TERMINATION; SUCCESSOR RECORDKEEPER:
a) DURATION - This Agreement will continue in effect until terminated.
b) TERMINATION - Each party may terminate this Agreement upon sixty (60)
days prior written notice to the other. Such notice shall be deemed to
have been given three (3) days after mailing in the U.S. mail or
immediately upon receipt if delivered to the address set forth below.
The notice period may be waived by the party entitled to the notice.
c) SUCCESSOR RECORDKEEPER - Upon termination, the parties agree that
Prudential shall have no further duty or responsibility to the Plan
under this Agreement. However, Prudential will use reasonable efforts
to transfer all relevant non-Prudential proprietary information
concerning the Plan, in Prudential's standard format, to the Employer
or to a successor recordkeeper. Any unforeseeable costs or expenses
incurred by Prudential in effecting this transfer shall be paid by the
Employer unless waived in writing by Prudential. The Employer agrees
that Prudential may charge reasonable fees for the provision of
requested records or reports that Prudential previously provided.
d) SURVIVAL OF INDEMNIFICATION AND INVESTMENTS - The Employer
acknowledges and agrees that the indemnification provisions of
paragraph 6 shall survive the termination of this Agreement. The
Employer understands and acknowledges that the termination of this
Agreement shall not require the sale by the Trust of shares of
Prudential mutual funds held by the Trust (unless specifically
requested by Prudential in writing).
8. NOTICES: Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed, sent by
facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, telegraphed or, if sent by facsimile transmission, upon the
recipient's oral verification by telephone of receipt or, if mailed, three
(3) days after the date of deposit in the U.S. mail, as follows:
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If to Prudential: (By U.S. mail) (By other than U.S. mail)
Prudential Investments Prudential Investments
Attn.: Retirement Services Attn.: Retirement Services
30 Scranton Office Park 00 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000-0000 Xxxxxxxx, XX 00000-0000
If to the Employer:
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9. ENTIRE AGREEMENT; Amendment: This Agreement, including the Exhibits hereto
which are specifically incorporated herein, contains the entire Agreement
among the parties hereto with respect to the subject matter hereof, and
there are no other Agreements written or oral, relating to the subject
matter hereof other than those explicitly set forth herein or attached
hereto. This Agreement may be amended at anytime, but only when agreed to
in writing by the parties.
10. CONSTRUCTION: This Agreement is the result of negotiation by both parties,
and, therefore, no claim shall be made to construe any portion of the
Agreement against either party on the basis of such party's participation
in the negotiating thereof.
11. BINDING EFFECT; NO ASSIGNMENT: This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors,
assigns and legal representatives. Neither this Agreement, nor any right
hereunder, may be assigned by any party without the written consent of the
other parties hereto. Notwithstanding the foregoing, this Agreement may be
assigned by Prudential to a successor entity without the prior written
consent of the Employer.
12. COUNTERPARTS: This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and delivered, shall
be an original, but all such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all of the
parties hereto.
13. HEADINGS: The headings in this Agreement are for reference only, and shall
not affect the interpretation of this Agreement.
14. SEVERABILITY: If any word, phrase, sentence, paragraph, provision or
section of this Agreement shall be held, declared, pronounced or rendered
invalid, void, unenforceable or inoperative for any reason by any court of
competent jurisdiction, governmental authority, statute or otherwise, such
holding, declaration, pronouncement or rendering shall not adversely affect
any other word, phrase, sentence, paragraph, provision or section of this
9
Agreement, which shall otherwise remain in full force and effect and be
enforced in accordance with its terms.
15. GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of New Jersey, except the choice of law rules,
applicable to agreements made and to be performed entirely within such
State.
16. THIRD PARTY BENEFICIARIES: The provisions of this Agreement are solely for
the benefit of the parties hereto and their Affiliates and are not intended
to confer upon any person except the parties hereto any rights or remedies
herein.
17. UNFORESEEN CIRCUMSTANCES: Prudential shall not be liable for any default or
delay in the performance of its services under this Agreement if and to the
extent such default or delay is primarily caused, directly or indirectly,
by:
a) fire, flood, elements of nature or other acts of God;
b) any outbreak or escalation of hostilities, war, riots or civil
disorders in any country;
c) any act or omission of the other party or any governmental authority;
or
d) nonperformance of a third party or any similar cause beyond the
reasonable control of Prudential, including without limitation,
failures or fluctuations in telecommunications or other equipment.
In any such event, Prudential shall be excused from any further performance
and observance of the obligations so affected only for as long as such
circumstances prevail and Prudential continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
18. WRITING AND SIGNATURE; ELECTRONIC TRANSACTIONS: Unless otherwise explicitly
required by law,
a) Any requirement for a writing under this Agreement may be rendered in
any form that can reliably reproduce an accurate physical record of
the communication and authenticate the source, including but not
limited to facsimile transmission, electronic mail, indexed telephone
recording, or Internet transmission.
b) Any requirement of a signature under this Agreement may be rendered in
any form clearly indicated by the signatory to be a signature or which
complies with instructions directly given to the signatory as to the
proper form of indicating a signature in an electronic or voice
response environment. Appropriate forms include, but are not limited
to, personal identification numbers rendered over the internet,
facsimile transmissions, and unique telephone keypad combinations
pressed during recorded calls.
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c) Notwithstanding a) or b), above, the recipient of any writing or
signature under this Agreement may require the confirmation of any
writing or signature in physical form (such as hand or typewritten or
the equivalent) with a manual signature.
d) The Employer represents that the Plan document(s) will allow for
transactions to be made by electronic means before the Employer
permits Prudential to offer such transactions. The Plan document(s)
and this Agreement together shall be deemed a master contracting
agreement ("Master Contract"). Under this Master Contract, notices,
consents and other actions by or on behalf of, or with respect to, the
Plan, its participants and their respective beneficiaries ("Plan
Transactions") may be effected, in whole or in part, by electronic
means. Any Plan Transaction relating to services provided under this
Agreement may be initiated or effected by the Employer, the Plan, a
participant or a beneficiary by use of Prudential-authorized
electronic means, including a voice response system (generally
referred to as Interactive Voice Response, or IVR), Internet access
system (including the Prudential Web site) or telephone service line.
Use of electronic means for Plan transactions is subject to the terms
and conditions established by Prudential and disclosed to the Employer
and participants, and electronic transactions shall be binding on the
parties if Prudential, acting in good faith, believes that such
transactions are authorized by the Employer, a participant, or
beneficiary, as applicable.
IN WITNESS THEREOF, the Employer has caused this Agreement to be executed by its
duly authorized representative.
Date Signed:
Date Agreement Effective: August 1,1999
Employer Authorized By: Prudential Authorized By:
----------------------------------- -----------------------------------
Name Name
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Authorized Signature Authorized Signature
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Title Title
-----------------------------------
Date
This Agreement is not effective until properly countersigned by an authorized
representative of Prudential.
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