Recordkeeping and Administrative Services Agreement
Between
20th Century Industries
And
Fidelity Institutional Retirement Services Company
20TH CENTURY INDUSTRIES 401(K) SUPPLEMENTAL PLAN
Dated as of April 1, 1997
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Exhibit 4.3
RECORDKEEPING AND ADMINISTRATIVE SERVICES AGREEMENT, dated as of the first day
of April, 1997, between 20TH CENTURY INDUSTRIES, a California corporation,
having an office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx (the
"SPONSOR"), and FIDELITY INSTITUTIONAL RETIREMENT SERVICES COMPANY, a division
of FMR Corp., a Massachusetts corporation, having an office at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("FIDELITY").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor (within the meaning of Section 3(16)(B)
of the Employee Retirement Income Security Act of 1974, as amended ["ERISA"]) of
the 20th Century Industries 401(k) Supplemental Plan (the "PLAN"); and
WHEREAS, the Sponsor intends that the Plan be maintained as an unfunded
Plan for a select group of highly-compensated employees (as defined in Section
401(a)(1) of ERISA) of the Sponsor or as an excess benefit plan (as defined in
Section 4(b)(5) of ERISA); and
WHEREAS, the Sponsor wishes to have Fidelity perform certain ministerial
recordkeeping and administrative functions for the Plan; and
WHEREAS, Fidelity is willing to perform such services within the explicit
provisions of the Plan or a framework of Plan provisions, guidelines and
interpretations conveyed in writing to Fidelity by the Sponsor.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, the Sponsor and Fidelity agree as
follows:
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Section 1. SERVICES TO BE PERFORMED. Fidelity shall have the responsibility to
perform only those recordkeeping and administrative functions set forth on
Schedule "A" attached hereto and made a part hereof, as amended from time to
time. Fidelity will not exercise any discretionary authority that might cause
Fidelity to be treated as a fiduciary of the Plan (within the meaning of Section
3(21) of ERISA). The Sponsor hereby acknowledges and authorizes that the
services to be provided under this Agreement shall be provided by Fidelity, its
agents or affiliates including Fidelity Investments Institutional Operations
Company ("FIIOC") or its successor, and that certain of such services may be
provided pursuant to one or more other contractual agreements or relationships.
Section 2. SPONSOR DIRECTIONS. The Sponsor shall provide to Fidelity such
provisions, guidelines and interpretations (collectively, "DIRECTIONS") as may
reasonably be required to enable Fidelity to perform the services required in
accordance with Schedule "A" (which Schedule shall itself be deemed to be a
Direction). Whenever the Sponsor provides a Direction to Fidelity, Fidelity
shall be fully protected in relying on the Direction if the Direction is
contained in a writing or is oral and immediately confirmed in writing, signed
by any individual whose name and signature have been submitted in writing by the
Sponsor to Fidelity, in the form of the letter attached hereto as Schedule "C",
provided Fidelity reasonably believes the signature to be genuine. Fidelity
shall have no responsibility to ascertain any Directions: (i) accuracy, or (ii)
compliance with the terms of the Plan, or any applicable law. Fidelity may, in
its discretion, refuse to honor a Direction if it is not made in writing.
Section 3. HYPOTHETICAL INVESTMENT OPTIONS. Fidelity shall not maintain any
assets for the Plan. Fidelity shall maintain Plan accounts for participants
based on hypothetical investments ("Phantom Funds") for each participant.
Fidelity shall credit a rate of return (loss) to the Phantom Funds which is
based on the investment results of the corresponding investment options.
Valuation of the CIGNA Fixed Fund is set forth in the procedures attached hereto
as Schedule "E". The investment options for which Fidelity shall provide
recordkeeping and administrative services are described in Schedule "A" attached
hereto. It is not intended that
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this Agreement confer any ownership rights on participants regarding the Phantom
Funds used to determine benefits payable to participants under the Plan.
Section 4. INVESTMENT OF ACCOUNTS. Fidelity shall maintain records of the
deemed exchange of Phantom Funds investments and transfers and changes in the
deemed investment allocation of their accounts. If directions are received
prior to 4:00 p.m. eastern time ("ET"), investments in Phantom Funds shall be
credited on the same business day. Directions received after 4:00 p.m. ET will
be processed on the next business day. A confirmation of the transaction will
be mailed to the participant within five (5) business days of the call.
Section 5. TELEPHONE DIRECTIONS BY PARTICIPANTS. Each Plan participant shall
be entitled to direct Fidelity in which hypothetical investment option(s) the
deemed investment of funds is used to determine the participants' benefits under
the Plan. Such directions may be made by Plan participants by the use of the
Telephone Exchange System maintained by Fidelity for such purposes, in
accordance with the Telephone Exchange Guidelines attached hereto as Schedule
"D". The Sponsor hereby directs Fidelity to act upon such telephonic
instructions without question and agrees that any such instructions shall be
treated for all purposes hereunder as if it were a Direction (as defined in
Section 2 above) from the Sponsor.
Section 6. DISTRIBUTIONS. Fidelity shall not be responsible for making Plan
distributions to participants. In addition, Fidelity shall not be responsible
for federal, state, or local income tax reporting or withholding with respect to
Plan distributions.
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Section 7. DOCUMENTATION. The Sponsor hereby certifies that it has furnished
Fidelity with a copy of the Plan and all amendments thereto in effect on the
date of this Agreement, and copies of all Directions which may be required as of
the date of this Agreement for Fidelity to perform the services required in
accordance with Schedule "A". The Sponsor will provide Fidelity with copies of
all amendments to the Plan and all such Directions which the Sponsor deems
necessary for Fidelity to perform its recordkeeping and administrative services
under this Agreement or which Fidelity may reasonably request from time to time.
Section 8. RECORDS. Prior to the termination of this Agreement, all records
generated by Fidelity in the course of performing its services in accordance
with Schedule "A" shall be open to inspection and audit by the Sponsor, or any
person designated by the Sponsor, during Fidelity's regular business hours at
Fidelity's office where such records are maintained. Upon the termination of
this Agreement, Fidelity shall provide to the Sponsor, or any person designated
by the Sponsor, such other records and information as may be reasonably
requested by the Sponsor and Fidelity shall be entitled to reasonable
compensation from the Sponsor for such other records or information.
Section 9. COMPENSATION. As consideration for its services under this
Agreement, Fidelity shall be entitled to compensation which shall be computed in
accordance with Schedule "B" attached hereto and made a part hereof, as amended
from time to time. Fidelity shall xxxx the Sponsor quarterly in arrears for
such compensation, and within thirty (30) days of receipt of Fidelity's
quarterly xxxx, the Sponsor shall send to Fidelity payment in such amount.
Section 10. DURATION. This Agreement 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 11. AMENDMENT AND TERMINATION. Either party, by sixty (60) days
written notice to the other, may
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terminate this Agreement, unless the receiving party agrees to a shorter notice
period. This Agreement may be amended or modified at any time by an instrument
executed by the Sponsor and Fidelity. Any Schedule to this Agreement may be
amended or modified at any time by an instrument executed by the Sponsor and
Fidelity.
Notwithstanding the foregoing, to reflect increased operating costs, Fidelity
may once each calendar year amend Schedule "B" without the Sponsor's consent
upon seventy-five (75) days prior written notice to the Sponsor.
Section 12. INDEMNIFICATION. The Sponsor shall indemnify Fidelity against, and
hold Fidelity 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
Fidelity 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, damage, penalty,
liability, cost or expense resulting from Fidelity's negligence or bad faith.
The provision of this Section shall survive the termination of this Agreement.
Section 13. GENERAL TERMS. This Agreement supersedes all written and oral
agreements, communications or negotiations among the parties, and it constitutes
the complete and full understanding and agreement of the parties with regard to
the subject matter hereof. No waiver by any party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other
subsequent failure or refusal to so comply. This Agreement shall inure to the
benefit of, and shall be binding upon, the successors and assigns of the
respective parties. 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. This Agreement shall be governed by the laws
of the
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Commonwealth of Massachusetts, except to the extent such laws are superseded by
section 514 of ERISA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers.
20TH CENTURY INDUSTRIES
BY:
---------------------------
NAME:
-------------------------
TITLE:
------------------------
DATE:
FIDELITY INSTITUTIONAL RETIREMENT SERVICES COMPANY
BY:
---------------------------
NAME:
-------------------------
TITLE:
------------------------
DATE:
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SCHEDULE "A"
ADMINISTRATIVE SERVICES
Fidelity will provide the recordkeeping and administrative services set forth on
this Schedule "A" for active and deferred participant Phantom Fund accounts in
the Plan. When used in this Schedule "A", all references to Fund and account
transactions shall be for recordkeeping purposes only and there shall be no
actual investment, exchange or withdrawal of funds.
* Maintain Participant account records with the following Phantom Fund
investment options:
- CIGNA Fixed Fund
- Fidelity Magellan Fund
- Fidelity Retirement Government Money Market Portfolio
- Fidelity Equity Income Fund
- Fidelity Freedom Income Fund
- Xxxxxxxxx Foreign Fund
- Fidelity U.S. Equity Index Portfolio
- Fidelity Contrafund
- Invesco Emerging Growth Fund
- Founders Balanced Fund
* Maintain Participant account records with the following money
classifications:
- Compensation Deferrals
- Company Matching Credits
Y Process consolidated deemed contribution records via electronics data
transmission.
Y Provide the Sponsor with Fidelity's Retirement Service Group's toll-free
telephone service.
Y Process exchanges (transfers) between Phantom Funds on a daily basis via
Fidelity's toll-free telephone service.
Y Maintain and process changes to participants' prospective investment mix
elections via Fidelity's toll-free telephone service.
Y Prepare and mail to the participant, a confirmation of the transactions
(exchanges and changes to investment mix elections) within five (5)
business days of the participants instructions.
Y Prepare, reconcile and deliver a monthly Trial Balance Report presenting
all money classes and Phantom Fund 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.
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Y 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.
Y Prepare and distribute, to each plan participant directly, a quarterly
detailed participant statement reflecting all activity for the period.
Statements will be delivered not later than twenty (20) days after each
quarter in the absence of unusual circumstances.
Y Reconcile and process, participant withdrawal requests as approved and
directed by the Sponsor. Necessary account information will be wired to
the Sponsor for issuance of participant checks and tax reporting.
20TH CENTURY INDUSTRIES FIDELITY INSTITUTIONAL
RETIREMENT SERVICES COMPANY
By: By:
Date
Senior Vice President Date
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SCHEDULE "B"
FEE SCHEDULE
Y Annual Participant Fee $7,500 per year, billed and
payable quarterly*.
Y Other Fees: separate charges for Remote Access, 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.
* This fee is based upon relationship pricing with the 20th Century Savings
and Security Plan.
20TH CENTURY INDUSTRIES FIDELITY INSTITUTIONAL
RETIREMENT SERVICES COMPANY
By: By:
Date
Senior Vice President Date
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Schedule "C"
(Sponsor's Letterhead)
Xx. Xxxxxxx Xxxxxx
Fidelity Institutional Retirement Services Company, Inc.
00 Xxxxxxxxxx Xxxxxx, XX0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: (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 the Recordkeeping Agreement,
dated as of (date), between us. (I or We) hereby designate (name of
individual), (name of individual), and (name of individual), as the individuals
who may provide direction upon which Fidelity Investments Institutional
Operations 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,
(SPONSOR)
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 "D"
TELEPHONE EXCHANGE GUIDELINES
The following telephone exchange procedures are currently employed by Fidelity
Investments Institutional Operations Company, Inc. (FIIOC).
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.
FIIOC reserves the right to change these telephone exchange procedures at its
discretion.
EXCHANGES BETWEEN PHANTOM FUNDS
Participants may call on any business day to exchange between the Phantom
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.
EXCHANGE RESTRICTIONS
Participants will not be permitted to make direct transfers from the CIGNA
Fixed Fund into a competing fund. Participants who wish to exchange from
the CIGNA Fixed Fund into a competing fund, must first exchange into a
non-competing fund for a period of 90 days.
20TH CENTURY INDUSTRIES
By:
Date
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