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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 2000
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INFORMATION RESOURCES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-2947987
(State of incorporation or organization) (I.R.S. Employer Identification No.)
150 NORTH CLINTON STREET, CHICAGO, ILLINOIS 60661
(Address of Principal Executive Offices)
INFORMATION RESOURCES, INC. 1999 RESTRICTED STOCK PLAN
INFORMATION RESOURCES, INC. 1999 NONQUALIFIED DEFINED CONTRIBUTION PLAN
(Full title of the plans)
MONICA M. WEED, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, INFORMATION RESOURCES, INC.
150 NORTH CLINTON STREET, CHICAGO, ILLINOIS 60661
(312) 726-1221 (PHONE) (312) 726-1091 (FAX)
(Name, Address, and Telephone Number of Agent for Service)
WITH A COPY TO:
ROBERT A. MCWILLIAMS, ESQ.
FREEBORN & PETERS, 311 SOUTH WACKER DRIVE, SUITE 3000, CHICAGO, ILLINOIS 60606
(312)360-6551 (PHONE) (312) 360-6570 (FAX)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement. The
securities that are being registered on this Form are to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act of 1933.
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
Title Of Securities Amount To Be Offering Price Amount Of
To Be Registered(1) Registered(2) Per Share (3) Registration Fee
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<S> <C> <C>
Common Stock $.01 par value per share....... 913,406 $7.375 $1,779
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</TABLE>
(1) Includes registration of any interests in the plans.
(2) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock which become issuable under the plans by reason
of any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration
which results in an increase in the number of the Registrant's outstanding
shares of Common Stock.
(3) The Offering Price Per Share has been estimated in accordance with Rule
457(h) under the Securities Act of 1933 as to 913,406 shares of Common
Stock authorized for issuance pursuant to the plans described below, solely
for the purpose of calculating the registration fee. The computation is
based upon the average of the high and low price of the Common Stock as
reported on the Nasdaq National Market on February 22, 2000. Includes
36,406 shares and 877,000 shares reserved for issuance under (i) the 1999
Restricted Stock Plan, and (ii) the 1999 Nonqualified Defined Contribution
Plan, respectively.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents filed by Information Resources, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1998;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999;
(c) the description of the Company's common stock, par value $.01
per share, contained in the Company's Registration Statement
on Form 8-A dated December 22, 1983; and
(d) the description of the Company's stock purchase rights
contained in the Company's Registration Statement on Form 8-A
dated March 15, 1989.
(e) All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1934 Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall
be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation: (a) eliminates the
personal liability of the Registrant's directors and officers for monetary
damages arising from a breach of their fiduciary duties under certain
circumstances; and (b) authorizes the Registrant to indemnify its directors and
officers to the fullest extent permitted by the Delaware General Corporation
Law. The limitation of liability in the Certificate of Incorporation does not
affect the availability of equitable remedies such as injunctive relief or
rescission, and does not apply to liabilities arising under the federal
securities laws. The Registrant's
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Bylaws: (a) allow for the indemnity of the Registrant's directors and officers
to the fullest extent permitted by the Delaware General Corporation Law; and (b)
require, under certain circumstances, Registrant to advance expenses to its
directors and officers in connection with a legal proceeding.
Registrant has also entered into indemnification agreements with its
directors which allow for the indemnification of directors for most expenses,
including attorneys' fees, judgments, fines and settlement amounts incurred by
them in any action or proceeding, including any action brought by or in the
right of Registrant, or any other company or enterprise to which the person
provides services at the request of Registrant. Under these Agreements,
Registrant is also required to advance expenses to its directors under certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits listed on the accompanying Index to Exhibits are a part
of this Registration Statement. (See Exhibit Index below).
ITEM 9. UNDERTAKINGS.
(a) Registrant undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(iii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant
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<PAGE> 4
pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) Registrant undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the annual
report of Registrant pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the
Registration Statement, shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
an initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that
in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by Registrant of expenses incurred or paid by a director,
officer or controlling person of Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Chicago, State of Illinois on February 17, 2000.
INFORMATION RESOURCES, INC.
By: /s/ Joseph P. Durrett
-------------------------------------
Joseph P. Durrett
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph P. Durrett and Monica M. Weed,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on February 17, 2000.
/s/ Joseph P. Durrett Chairman, President and Chief Executive
- ------------------------------------ Officer (Principal Executive Officer)
Joseph P. Durrett and Director
/s/ Gary Hill Chief Financial Officer (Principal
- ------------------------------------ Financial and Accounting Officer)
Gary Hill
/s/ James G. Andress Director
- ------------------------------------
James G. Andress
/s/ William B. Connell Director
- ------------------------------------
William B. Connell
/s/ Edwin E. Epstein Director
- ------------------------------------
Edwin E. Epstein
/s/ Bruce A. Gescheider Director
- ------------------------------------
Bruce A. Gescheider
/s/ John D.C. Little Ph.D. Director
- ------------------------------------
John D.C. Little Ph.D.
/s/ Leonard M. Lodish Director
- ------------------------------------
Leonard M. Lodish
/s/ Edward E. Lucente Director
- ------------------------------------
Edward E. Lucente
/s/ Jeffrey P. Stamen Director
- ------------------------------------
Jeffrey P. Stamen
/s/ R.H. Van Wagener, Jr. Director
- ------------------------------------
R.H. Van Wagener, Jr.
/s/ Thomas W. Wilson Director
- ------------------------------------
Thomas W. Wilson
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EXHIBIT INDEX
Exhibit Description
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4.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3(a) to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1988, and
Exhibit 3(c) to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1989)
4.2 By-Laws of the Registrant, as amended (incorporated by reference to
Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1988, and Exhibit 3(d) to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1989)
4.3 Form of Rights Agreement between the Registrant and Harris Trust and
Savings Bank, as Rights Agent (incorporated by reference to Exhibit
4.1 to the Registrant's Registration Statement on Form 8-A filed
with the Commission on March 15, 1989)
5.1 Opinion of Freeborn & Peters (filed herewith)
23.1 Consent of Ernst & Young LLP (filed herewith)
23.2 Consent of Freeborn & Peters (contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (contained on Signature Page)
99.1 Information Resources, Inc. 1999 Restricted Stock Plan (filed
herewith)
99.2 Information Resources, Inc. 1999 Nonqualified Defined Contribution
Plan (filed herewith)
99.3 Information Resources, Inc. Nonqualified Defined Contribution Plan
Trust (filed herewith)
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EXHIBIT 5.1
[Letterhead of Freeborn & Peters]
February 25, 2000
Information Resources, Inc.
150 North Clinton Street
Chicago, Illinois 60661
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission (the "Registration Statement")
in connection with the registration under the Securities Act of 1933, as
amended, of the 1999 Restricted Stock Plan (as to 36,406 shares) and the 1999
Nonqualified Defined Contribution Plan (as to 877,000 shares) (collectively, the
"Plans" and the "Shares" as appropriate). We have examined the proceedings taken
and are familiar with the proceedings proposed to be taken by you in connection
with the issuance and sale of the Shares pursuant to the Plans.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ FREEBORN & PETERS
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Information Resources, Inc. 1999
Restricted Stock Plan and 1999 Nonqualified Defined Contribution Plan of our
report dated February 11, 1999, with respect to the consolidated financial
statements and schedule of Information Resources, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young, LLP
------------------------------
Chicago, Illinois
February 25, 2000
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EXHIBIT 99.1
INFORMATION RESOURCES, INC.
1999 RESTRICTED STOCK PLAN
SECTION 1. PURPOSE.
The purpose of this Restricted Stock Plan (the "Plan") is to advance
the interests of Information Resources, Inc. by providing an opportunity to all
employees of the Company to obtain shares of securities in the Company. The Plan
is intended to enhance the ability of the Company to attract and retain highly
qualified officers and employees, and to motivate such persons to serve the
Company, and to provide such officers and employees an opportunity to acquire or
increase a direct proprietary interest in the operations and future success of
the Company. To this end, the Plan provides for the grant of Restricted Stock in
accordance with the terms hereof.
The Plan does not constitute a tax-qualified plan under Section 401(a)
of the Internal Revenue Code of 1986, as amended ("Code"), and is not subject to
the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
SECTION 2. DEFINITIONS.
For purposes of interpreting the Plan and related documents (including
Award Agreements), the following definitions shall apply:
2.1 "Affiliate" shall mean any corporation or other business
organization in which the Company owns, directly or indirectly, 20% or more of
the voting stock or capital.
2.2 "Award Agreement" means the restricted stock agreement between
the Company and a Participant that evidences and sets out the terms and
conditions of a Grant.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Code" means the Internal Revenue Code of 1986, as now in effect
or as hereafter amended.
2.5 "Committee" means the Compensation Committee of the Board, or
another committee of the Board, as designated by the Board.
2.6 "Company" means Information Resources, Inc., a Delaware
corporation, and, except where the context otherwise requires, its Affiliates.
2.7 "Disability" means "permanent and total disability" (within the
meaning of Section 22(e)(3) of the Code)
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2.8 "Effective Date" means November 18, 1999, the date the Board in
its resolution adopted the Plan.
2.9 "Exchange Act" means the Securities Exchange Act of 1934, as now
in effect or as hereafter amended.
2.10 "Fair Market Value" means the value of each share of Stock
subject to the Plan determined as follows: if on the Grant Date or other
determination date the shares of Stock are listed on an established national or
regional stock exchange, are admitted to quotation on the National Association
of Securities Dealers Automated Quotation System, or are publicly traded on an
established securities market, the Fair Market Value of the shares of Stock
shall be the closing price of the shares of Stock on such exchange or System or
in such market (the highest such closing price if there is more than one such
exchange or market) on the trading day immediately preceding the Grant Date (or
on the Grant Date, if so specified by the Committee or the Board) or such other
determination date (or if there is no such reported closing price, the Fair
Market Value shall be the mean between the highest bid and lowest asked prices
or between the high and low sale prices on such trading day) or, if no sale of
the shares of Stock is reported for such trading day, on the next preceding day
on which any sale shall have been reported. If the shares of Stock are not
listed on such an exchange, quoted on such System or traded on such a market,
Fair Market Value shall be determined by the Committee in good faith.
2.11 "Grant" means an award of Restricted Stock under the Plan.
2.12 "Grant Date" means the date as of which the shares of Restricted
Stock are granted.
2.13 "Officer" means any (i) "Executive Officer" of the Company as
defined in Rule 3b-7 of the General Rules and Regulations promulgated under the
Exchange Act or (ii) Divisional President of the Company.
2.14 "Option Exchange Program" means a program whereby outstanding
stock options are exchanged for Restricted Stock granted pursuant to the Plan.
2.15 "Participant" means a person who holds Restricted Stock under the
Plan.
2.16 "Plan" means this Information Resources, Inc. 1999 Restricted
Stock Plan, as amended from time to time.
2.17 "Reporting Person" means a person who is required to file reports
under Section 16(a) of the Exchange Act.
2.18 "Restricted Period" means the period during which Restricted
Stock is subject to restrictions or conditions.
2.19 "Restricted Stock" means shares of Stock awarded to a Participant
under this Plan.
2.20 "Retirement" means termination of employment at age 55 with 5 or
more years of service with the Company.
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2.21 "Securities Act" means the Securities Act of 1933, as now in
effect or as hereafter amended.
2.22 "Stock" means the common stock, par value $0.01 per share, of the
Company.
SECTION 3. ADMINISTRATION.
3.1 Administration by Committee. The Plan shall be administered by
the Committee.
3.2 Authority. Subject to the provisions of this Plan, the Committee
shall have full power to interpret and construe the Plan and to establish, amend
and rescind rules and regulations for its administration. The determination of
the Committee on matters within its authority shall be final, binding and
conclusive on the Company, the Participant and all other persons. Subject to the
provisions of the Plan, the Committee shall have the authority:
(a) to manage and control the operation of the Plan, including
but not limited to (i) determining who shall receive Grants under the
Plan; (ii) determining the number of shares of Stock to be subject to
each Grant; (iii) determining the terms and conditions of any
restriction or condition relating to the vesting, transfer or
forfeiture of a Grant or the shares of Stock subject thereto (including
the extension or acceleration of the vesting date of any award under
the Plan); (iv) prescribing the form of each Award Agreement evidencing
any award under the Plan; (v) determining whether Grants are to be made
alone or in addition to, or in substitution or exchange for, any other
award granted under this or another plan of the Company; and (vi)
amending, modifying or supplementing the terms of, canceling and
reissuing, or repurchasing any outstanding Grant (including the
authority to modify Grants to foreign nationals or individuals employed
outside the United States to recognize differences in local law, tax
policy, or custom);
(b) to make awards under the Plan, or authorize other persons to
make certain Grants under and pursuant to the Plan subject to such
restrictions, limitations and conditions as the Committee deems
appropriate;
(c) to initiate an Option Exchange Program;
(d) to correct any defect or omission and reconcile any
inconsistency in the Plan or in any award hereunder; and
(e) to make all other determinations and take all other actions
as it deems necessary or desirable for the implementation and
administration of the Plan.
SECTION 4. SHARES SUBJECT TO THE PLAN.
4.1 Number of Shares Reserved. Subject to adjustment as provided in
Section 10 hereof, the aggregate number of shares of Stock available for
issuance under the Plan shall be one hundred thousand (100,000). Such shares of
Stock shall be shares currently authorized but unissued or currently held or
subsequently acquired by the Company as treasury shares, including shares
purchased in the open market or in private transactions.
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4.2 Reissuance of Shares. In the event of termination (by reason of
forfeiture, expiration, cancellation, surrender, or otherwise) of any award
under the Plan, any shares of Stock not vested shall again be available for
awards under the Plan, except that the following shares shall not be available
for reissuance under the Plan: (a) shares which are withheld from any award or
payment under the Plan to satisfy tax withholding obligations, and (b) shares
which are surrendered to fulfill tax obligations.
SECTION 5. ELIGIBILITY.
Restricted Stock awards may be granted to any employee of the Company.
SECTION 6. AWARDS.
6.1 Participant; Limits. The Committee from time to time may grant
Restricted Stock to persons eligible to receive Grants under Section 5 hereof,
subject to such restrictions, conditions and other terms as the Committee may
determine. The Committee shall not award more than 50% of the shares of Stock
authorized for issuance hereunder to persons who are Officers.
6.2 Restrictions. At the time a Grant of Restricted Stock is made and
pursuant to Section 6 hereof, the Committee shall establish a period of time for
vesting (the "Restricted Period") applicable to such Restricted Stock. Each
Grant of Restricted Stock may be subject to a different Restricted Period. At
the time a Grant of Restricted Stock is made, the Committee may in its sole
discretion, prescribe restrictions in addition to or other than the expiration
of the Restricted Period, which may be applicable to all or any portion of the
Restricted Stock. The Committee also may, in its sole discretion, shorten or
terminate the Restricted Period or waive any other restrictions applicable to
all or a portion of the Restricted Stock.
6.3 Lapse of Restrictions. Subject to the terms and conditions of the
Plan, at the end of any time period during which the shares of Restricted Stock
are subject to forfeiture or restrictions on transfer, such shares will be
delivered free of all restrictions to the Participant (or to the Participant's
legal representative, beneficiary or heir).
6.4 Substitution of Cash. The Committee may, in its sole discretion,
substitute cash equal to the Fair Market Value (determined as of the date of the
distribution) of shares of Stock otherwise required to be distributed to a
Participant in accordance with this Section 6.
6.5 Additional Terms. Awards may contain such other provisions not
inconsistent with the provisions of the Plan, as the Committee shall determine
appropriate from time to time, and as set forth in the Award Agreement.
SECTION 7. VESTING.
7.1 Vesting Period. Except as otherwise specifically provided in an
Award Agreement, all shares of Restricted Stock granted hereunder shall vest
100% on the first anniversary of the Grant Date.
7.2 Termination. If at any time within the Restricted Period the
Participant ceases to be employed by the Company, then except as provided in
Section 11 hereof or as otherwise provided in an Award Agreement, all shares of
Restricted Stock which are not vested as of such termination date shall be
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immediately canceled and forfeited to the Company, and all of the Participant's
(and/or any other person's) rights therein shall immediately cease.
SECTION 8. TRANSFERABILITY OF AWARDS.
Prior to vesting, the shares of Restricted Stock shall not be
transferable and shall not be sold, exchanged, transferred, pledged,
hypothecated, or otherwise disposed of, otherwise than in accordance with the
express provisions of this Plan or by will or the laws of descent and
distribution. Any transfer, pledge, hypothecation, assignment or other
disposition of the Restricted Stock prior to the time that the Restricted Stock
has vested, other than as permitted under this Plan or in an Award Agreement,
shall cause the Restricted Stock to be immediately forfeited and canceled, and
shall cause all of Participant's rights therein to immediately cease.
SECTION 9. SHAREHOLDER RIGHTS.
During any period in which shares of Restricted Stock are subject to
forfeiture or restrictions on transfer, Participants who have been awarded
shares of Restricted Stock shall not have the rights of shareholders, including
the right to vote such shares or receive dividends paid on such shares.
SECTION 10. EFFECT OF CHANGES IN CAPITALIZATION.
10.1 Changes in Stock. In the event of any merger, consolidation,
reorganization, recapitalization, spinoff, stock dividend, stock split, reverse
stock split or exchange, the type and number of shares of Stock which are or may
be subject to awards under the Plan and the terms of any outstanding awards
shall be equitably adjusted by the Committee, in its sole discretion, to
preserve the intended value of benefits awarded or to be awarded to Participants
under the Plan. Subject to any contrary language in an Award Agreement
evidencing a Grant of Restricted Stock, any restrictions applicable to such
Restricted Stock shall apply as well to any replacement shares received by the
Participant as a result of the merger, reorganization or other transaction
referred to in this Section. Adjustments related to shares of Stock shall be
made by the Committee, whose determination in that respect shall be final and
conclusive. No fractional shares or other securities shall be issued pursuant to
any such adjustment, and any fractions resulting from any such adjustment shall
be eliminated in each case by rounding downward to the nearest whole share.
10.2 No Limitations on Company. The making of any award pursuant to
the Plan shall not affect or limit in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge, consolidate, dissolve or liquidate,
or to sell or transfer all or any part of its business or assets.
SECTION 11. RIGHTS IN EVENT OF TERMINATION OF EMPLOYMENT.
11.1 Rights in the Event of Involuntary Termination Other Than Death
or Disability. Unless otherwise provided by the Committee, upon the involuntary
termination of the Participant's employment with the Company for any reason
other than cause (which shall be deemed to include any reason directly
attributable to or resulting from any actions of the Participant), death,
Disability or Retirement, any Restricted Stock held by such Participant that has
not vested, or with respect to which all applicable restrictions and conditions
have not lapsed, shall continue to vest after such termination in accordance
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<PAGE> 6
with the vesting schedule applicable to the Participant. Whether a leave of
absence or leave on military or government service shall constitute a
termination of employment or other relationship for purposes of the Plan shall
be determined by the Committee, whose determination shall be final and
conclusive. Upon lapse of all restrictions (other than restrictions which, by
their terms, do not lapse) on Restricted Stock, such shares shall be deliverable
to the Participant or, in the event of the Participant's death following
termination of employment and prior to receipt of such shares, to the
beneficiary (if any) designated by the Participant in a written notice delivered
to the Committee and specifically referring to this Plan, and if no such
beneficiary exists or has been designated, then to the executors or
administrators of the Participant's estate.
11.2 Rights in the Event of Death. Unless otherwise provided by the
Committee, if a Participant dies while employed by the Company, all Restricted
Stock granted to such Participant shall continue to vest after the Participant's
death in accordance with the vesting schedule applicable to the Participant.
Upon lapse of all restrictions (other than restrictions which, by their terms,
do not lapse) on Restricted Stock, such shares shall be deliverable to the
beneficiary (if any) designated by the Participant in a written notice delivered
to the Committee and specifically referring to this Plan, and if no such
beneficiary exists or has been designated, then to the executors or
administrators of the Participant's estate.
11.3 Rights in the Event of Retirement or Disability. Unless otherwise
provided by the Committee, if a Participant's employment with the Company is
terminated by reason of Retirement or Disability of such Participant, such
Participant's then unvested Restricted Stock shall continue to vest after the
Participant's termination of employment in accordance with the vesting schedule
applicable to the Participant. Whether a termination of employment is to be
considered by reason of Retirement or Disability for purposes of the Plan shall
be determined by the Committee, whose determination shall be final and
conclusive. Upon lapse of all restrictions (other than restrictions which, by
their terms, do not lapse) on Restricted Stock, such shares shall be deliverable
to the Participant or, in the event of the Participant's death following
termination of employment and prior to receipt of such shares, to the
beneficiary (if any) designated by the Participant in a written notice delivered
to the Committee and specifically referring to this Plan, and if no such
beneficiary exists or has been designated, then to the executors or
administrators of the Participant's estate.
11.4 Rights in the Event of Resignation or Involuntary Termination for
Cause. Upon the Participant's voluntary resignation, or involuntary termination
of employment with the Company for cause (which includes any involuntary
termination that is directly attributable to or resulting from any actions of
the Participant), any Restricted Stock held by such Participant that has not
vested, or with respect to which all applicable restrictions and conditions have
not lapsed, shall immediately be deemed forfeited. Upon forfeiture, the
Participant shall have no further rights with respect to such Restricted Stock.
SECTION 12. PARACHUTE LIMITATIONS.
If the Participant is a "disqualified individual" (as defined in
Section 280G(c) of the Code), any Restricted Stock and any other right to
receive any payment or benefit under the Plan shall not vest (i) to the extent
that the right to any payment or benefit, taking into account all other rights,
payments or benefits to or for the Participant, would cause any payment or
benefit to the Participant under the Plan to be considered a "parachute payment"
within the meaning of Section 280G(b)(2) of the Code as then in
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effect (a "Parachute Payment"), provided that (ii) the preceding clause (i)
shall apply only if, as a result of receiving a Parachute Payment, the aggregate
after-tax amounts received by the Participant from the Company under any Award
Agreements, the Plan, and all other rights, payments or benefits to or for the
Participant would be less than the maximum after-tax amount that could be
received by the Participant without causing the payment or benefit to be
considered a Parachute Payment. In the event that, but for the provisions of
this Section 12, the Participant would be considered to have received a
Parachute Payment under any Award Agreements that would have the effect of
decreasing the after-tax amount received by the Participant as described in
clause (ii) of the preceding sentence, then the Participant shall have the
right, in the Participant's sole discretion, to designate any rights, payments
or benefits under any Award Agreements, the Plan, any other agreements and any
benefit arrangements to be reduced or eliminated so as to avoid having the
payment or benefit to the Participant under any Award Agreements be deemed to be
a Parachute Payment.
SECTION 13. TAX WITHHOLDING.
13.1 If any Participant properly elects within thirty (30) days of the
date on which an Award is granted to include in gross income for federal income
tax purposes an amount equal to the fair market value (on the date of grant of
the Award, and determined without regard to restrictions other than restrictions
which can never lapse) of the Stock subject to the Award, such person shall make
arrangements satisfactory to the Committee to pay to the Company in the year of
such Award any federal, state or local taxes required to be withheld with
respect to such shares. If such person shall fail to make such tax payments as
are required, the Company shall, to the extent permitted by law, have the right
to deduct and withhold from any payment of any kind otherwise due to the
Participant any federal, state or local income taxes and Social Security or
other employment-related taxes that Company reasonably determines to be required
by law to be withheld with respect to the Stock subject to such Award. If the
Company reasonably determines that the withholding obligations cannot be
satisfied from amounts due from the Company to the Participant, then upon
written request from the Company, Participant shall pay to the Company an
additional amount of cash sufficient to permit the Company to timely satisfy all
necessary withholding obligations arising in connection with the Restricted
Stock.
13.2 Each Participant who does not make the election described in
Section 13.1 shall, no later than the date that the restrictions imposed as a
condition of the Award lapse, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of, any federal, state or local
taxes of any kind required by law to be withheld with respect to the Stock
subject to such Award, and the Company shall, to the extent permitted by law,
have the right to deduct from any payment of any kind otherwise due to the
Participant, any federal, state or local taxes of any kind required by law to be
withheld with respect to the Stock subject to such Award. With the approval of
the Committee, the Participant may elect to pay withholding tax by withholding
shares of Stock relating to the Award.
SECTION 14. RESTRICTIVE LEGEND AND STOCK POWER.
Each certificate evidencing Stock subject to Awards shall bear an
appropriate legend referring to the terms, conditions and restrictions
applicable to such Award. Any attempt to dispose of Stock in contravention of
such terms, conditions and restrictions shall be ineffective. The Company shall
have no obligation to certificate the shares prior to vesting of the Award.
However, if the Company chooses to issue a certificate prior to vesting of the
Award, the Committee may adopt rules which provide that the certificates
evidencing such shares may be held in custody by a bank or other institution, or
that the
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Company may itself hold such shares in custody until the restrictions thereon
shall have lapsed and may require as a condition of any Award that the recipient
shall have delivered a stock power endorsed in blank relating to the Stock
covered by such Award.
SECTION 15. AMENDMENTS, MODIFICATION AND TERMINATION OF THE PLAN.
The Board or the Committee may terminate the Plan, in whole or in part,
may suspend the Plan, in whole or in part from time to time, and may amend the
Plan from time to time, including the adoption of amendments deemed necessary or
desirable to qualify the Awards under the laws of various states (including tax
laws) and under rules and regulations promulgated by the Securities and Exchange
Commission with respect to Reporting Persons, or to correct any defect or supply
an omission or reconcile any inconsistency in the Plan or in any Award granted
thereunder, without the approval of the shareholders of the Company. No
amendment or termination or modification of the Plan shall in any manner affect
Awards theretofore granted without the consent of the Participant unless the
Committee has made a determination that an amendment or modification is in the
best interest of all persons to whom Awards have theretofore been granted.
SECTION 16. NO CONTRACT OF EMPLOYMENT.
The Plan does not constitute a contract of employment, and selection as
a Participant will not give any employee the right to be retained in the employ
of the Company, nor any right or claim to any benefit or payment under the Plan,
unless such right or claim has specifically accrued under the terms of the Plan.
Except as otherwise provided in the Plan, no award under the Plan shall confer
upon the holder thereof any right as a shareholder of the Company prior to the
date that the Restricted Stock vests.
SECTION 17. EFFECTIVE DATE AND TERM.
The Plan shall be effective as of the Effective Date. The Plan shall be
terminated and no further Awards or Restricted Stock may be granted under the
Plan after ten (10) years from the Effective Date. Subject to the provisions of
Section 15, the Plan shall remain in effect until all restrictions imposed upon
outstanding shares of Restricted Stock have lapsed.
SECTION 18. GOVERNING LAW.
The Plan and all determinations made and actions taken pursuant thereto
shall be governed by the laws of the State of Illinois and construed in
accordance therewith.
SECTION 19. SEVERABILITY.
If any provision of the Plan or any Award Agreement shall be finally
determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
The Plan was duly adopted and approved by the Board of Directors of the
Company as of the 18th day of November, 1999.
INFORMATION RESOURCES, INC.,
a Delaware corporation
By: _______________________________
Title:_____________________________
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<PAGE> 1
EXHIBIT 99.2
INFORMATION RESOURCES, INC.
NONQUALIFIED DEFINED CONTRIBUTION PLAN
EFFECTIVE DECEMBER 3, 1999
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
INTRODUCTION ..........................................................................1
ARTICLE I Definitions...............................................................1
ARTICLE II Eligibility and Participation.............................................5
ARTICLE III Contributions.............................................................6
ARTICLE IV Allocation of Contributions...............................................6
4.01 Establishment of Accounts.................................................6
4.02 Allocations to Participants' Accounts.....................................6
4.03 Voting Stock..............................................................7
ARTICLE V Account Valuations and Adjustments........................................8
5.01 Adjustments for Net Changes in Stock Accounts.............................8
ARTICLE VI Distributions.............................................................8
ARTICLE VII Vesting...................................................................9
7.01 In General................................................................9
7.02 Accelerated Vesting in the Event of Retirement or Disability.............10
7.03 Accelerated Vesting in the Event of Death................................10
7.04 Accelerated Vesting in the Event of Change in Control....................10
7.05 Partial Vesting in the Event of Certain Involuntary
Terminations of Employment after Third Anniversary.......................11
7.06 Reallocation of Forfeited Stock..........................................11
ARTICLE VIII Administration of Plan...................................................12
8.01 The Committee............................................................12
8.02 Plan Administered by Committee...........................................12
8.03 Power of Delegation......................................................13
8.04 Communication by Committee...............................................14
ARTICLE IX Amendments...............................................................14
ARTICLE X Miscellaneous............................................................15
10.01 Designation of Beneficiaries.............................................15
10.02 Nonassignability.........................................................16
10.03 Plan Creates No Employment Rights........................................16
10.04 Limit on Claims and Liability............................................16
10.05 Choice of Forum; Timely Notice of Action ................................17
10.06 Governing Law............................................................18
10.07 Taxes and Withholding....................................................18
10.08 Right of Offset..........................................................19
10.09 Consents and Legends.....................................................20
10.10 Expenses.................................................................21
10.11 No Third Party Beneficiaries.............................................21
10.12 Successors and Assigns...................................................21
10.13 Plan Headings............................................................21
10.14 Number and Gender........................................................21
10.15 Severability of Provisions...............................................21
</TABLE>
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<PAGE> 3
INTRODUCTION
This Plan shall be known as the Information Resources, Inc.
Nonqualified Defined Contribution Plan (the "Plan"). The object of the Plan is
to provide designated employees, independent contractors and consultants of
Information Resources, Inc. ("IRI") and its Affiliates with an ownership
interest in the equity of Information Resources, Inc. and to align the interests
of those designated persons with the interests of IRI's shareholders. The Plan
is not intended to be qualified under Section 401(a) of the Internal Revenue
Code, as amended (the "Code"), and is not intended to be subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
ARTICLE I
DEFINITIONS
1.01 "Account" means a Participant's Stock Account or Unallocated
Stock Account, or both, as the context requires.
1.02 "Affiliate" means any corporation or other business
organization in which the Company owns, directly or indirectly, twenty percent
(20%) or more of the voting stock or capital.
1.03 "Beneficiary" means the person or persons who are entitled to
receive any benefit payable hereunder by reason of the death of a Participant,
as determined pursuant to Section 10.01.
1.04 "Board" means the Board of Directors of the Company.
1.05 "Change in Control" means:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becoming the "beneficial owner" (as defined
in Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the total voting
power represented by the Company's then outstanding voting securities;
or
(ii) A change in the composition of the Board occurring within
a two-year period, as a result of which fewer than a majority of the
directors are Incumbent Directors; or
(iii) The consummation of a merger or consolidation of the
Company with any other entity that has been approved by the
stockholders of the Company, other than a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or
(iv) The consummation of any liquidating distribution from the
Company made in furtherance of a plan of complete liquidation of the
Company approved by the stockholders of the Company, or the
consummation of a sale or disposition by the Company of all or
substantially all of the Company's assets.
1.06 "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
<PAGE> 4
1.07 "Committee" means the committee appointed by the Board to
administer the Plan pursuant to Section 8.01.
1.08 "Company" means Information Resources, Inc., any Affiliate
thereof, and any successor of the foregoing.
1.09 "Disability" means a physical or mental condition which
actually qualifies an Employee to receive long-term disability benefits under
the Company's Long-Term Disability Plan.
1.10 "Effective Date" means December 3, 1999.
1.11 "Employee" means each employee of the Company, and each other
individual who performs services as an independent contractor for or consultant
to the Company.
1.12 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.13 "Fair Market Value" means the value of each share of Stock
subject to the Plan determined as follows: if on the determination date the
shares of Stock are listed on an established national or regional stock
exchange, are admitted to quotation on the National Association of Securities
Dealers Automated Quotation System, or are publicly traded on an established
securities market, the Fair Market Value of the shares of Stock shall be the
closing price of the shares of Stock on such exchange or System or in such
market (the highest such closing price if there is more than one such closing
price) on the trading day immediately preceding the determination date; or if
there is no such reported closing price, the Fair Market Value shall be the mean
between the highest bid and lowest asked prices or between the high and low sale
prices on such trading day (the highest such mean if there is more than one);
or, if no sale of the shares of Stock is reported for such trading day, on the
next preceding day on which any sale shall have been reported. If the shares of
Stock are not listed on such an exchange, quoted on such System or traded on
such a market, Fair Market Value shall be determined by the Committee in good
faith.
1.14 "Incumbent Directors" means directors who either (A) are
directors of the Company as of the date hereof, or (B) are elected, or nominated
for election, to the Board with the affirmative votes of at least a majority of
the Incumbent Directors at the time of such election or nomination (but shall
not include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company).
1.15 "Officer" means any (i) "Executive Officer" of the Company as
defined in Rule 3b-7 of the General Rules and Regulations promulgated under the
Exchange Act or (ii) divisional president of the Company.
1.16 "Participant" means any Employee who is designated as a
Participant by the Committee pursuant to Article II.
1.17 "Plan" means the Information Resources, Inc. Nonqualified
Defined Contribution Plan, as described herein and as amended from time to time.
1.18 "Plan Year" means any calendar year or part thereof beginning
on the Effective Date.
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1.19 "Retirement" means a Termination of Employment other than (i)
a termination due to death, Disability, or Change in Control, (ii) a termination
due to layoff, reduction in force or similar type of action by the Company, or
(iii) a termination due to any reason directly attributable to the actions of
the Participant, in each case which Termination of Employment takes place after
the occurrence of both of the following events: (a) the Participant has attained
age sixty (60) and (b) the Participant has completed at least four (4) Years of
Service.
1.20 "Stock" means the Company's common stock.
1.21 "Stock Account" means the separate account established in the
name of each Participant under Section 4.01 to hold Stock that has been
allocated to such Participant and any distributions received with respect to
such Stock.
1.22 "Termination of Employment" means: (i) the resignation of an
Employee for any reason, (ii) the death or Retirement of an Employee, or (iii)
the termination of an Employee's employment, independent contractor or
consulting relationship with the Company for any reason not specified in clause
(i) or (ii) of this Section 1.22.
1.23 "Trust" means the legal entity created by the Trust Agreement
(and any amendments thereto) between the Company and the Trustee.
1.24 "Trust Agreement" means the agreement, made effective as of
the Effective Date, by and between IRI and the Trustee, including any amendments
thereto, setting forth the rights and obligations of the parties thereto in
respect of the contributions to and distributions from the Trust and the
establishment and administration of the Accounts pursuant to the Plan.
1.25 "Trustee" means any corporation or individual(s) that shall
accept the appointment as Trustee to execute the duties of the Trustee as
specifically set forth in the Trust Agreement.
1.26 "Unallocated Stock Account" means a separate account
established under Section 4.01 to hold Stock (and any dividend distributions
received with respect to such unallocated Stock) pending the allocation and
reallocation of such Stock to the Stock Accounts of Participants.
1.27 "Year of Service" means a twelve consecutive month period in
which the Participant completes at least 1,000 Hours of Service (as defined and
measured under the Information Resources, Inc. 401(k) Retirement Savings Plan).
ARTICLE II
ELIGIBILITY AND PARTICIPATION
The Committee shall, at any time and from time to time, designate
Employees who shall become Participants in the Plan. Each Employee designated by
the Committee shall become a Participant in the Plan as of the date on which the
Employee is so designated.
ARTICLE III
CONTRIBUTIONS
The Company shall irrevocably contribute to the Trust 877,000 shares of
Stock on or immediately
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<PAGE> 6
following the Effective Date. The Company may contribute
additional shares of Stock or cash to the Trust from time to time at its sole
discretion.
ARTICLE IV
ALLOCATION OF CONTRIBUTIONS
4.01 Establishment of Accounts. There shall be established a Stock
Account in the name of each Participant. There also shall be established a
separate Unallocated Stock Account to which any contribution made without
specific allocation and any forfeitures of Stock occurring hereunder shall be
credited pending allocation to Participants. These accounts shall also hold any
dividend distributions with respect to any shares of Stock held therein until
such dividend distributions are payable pursuant to the Plan.
4.02 Allocations to Participants' Accounts. The Committee shall in
its sole discretion designate the number of shares of Stock (or the amount of
cash) allocable to the Stock Account of each Participant, provided that not more
than 50% of the total number of shares of Stock allocated by the Committee to
Stock Accounts, and not more than 50% of the total amount of cash allocated by
the Committee to Stock Accounts, may be allocated to Stock Accounts in the name
of Participants who are Officers as of the date of such allocation. The number
of shares so allocated shall be subtracted from the Unallocated Stock Account or
credited to such Stock Account directly upon contribution by the Company.
Notwithstanding the foregoing, any stock remaining in the Unallocated Stock
Account as of the last day of each Plan Year (whether due to unallocated
contributions or forfeitures) and any dividend distributions remaining in the
Unallocated Stock Account received on Stock credited to the Unallocated Stock
Account shall be allocated among the Stock Accounts of Participants who are
Employees of the Company on the last day of such Plan Year in the proportion
that each Participant's allocation in respect of IRI's contributions for such
Plan Year bears to the allocations of such contributions for all Participants
who are Employees on the last day of such Plan Year, or in such other manner as
may be determined by the Committee in its sole discretion.
4.03 Voting Stock. With respect to Stock allocated to Participants'
Stock Accounts, each Participant shall be entitled to instruct the Trustee on a
confidential basis as to the manner in which the Trustee's voting rights will be
exercised with respect to any matter which involves the voting of such Stock
allocated to the Participant's Stock Account. Without limiting the foregoing,
the Trust Agreement shall provide 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
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. The Participant shall not be entitled to vote any
Shares held in the Unallocated Stock Account.
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<PAGE> 7
ARTICLE V
ACCOUNT VALUATIONS AND ADJUSTMENTS
5.01 Adjustments for Net Changes in Stock Accounts. In the event of
a Stock split, Stock dividend, combination of shares, or any other change or
exchange for other securities by reclassification, reorganization, merger,
consolidation, recapitalization, or otherwise, the Stock credited to any Stock
Account (including the Unallocated Stock Account) shall be approximately
adjusted to reflect such event(s) and the rights of each Participant to any new,
additional or different shares of stock or securities resulting from such
event(s); provided, however, that no fractional shares or other securities shall
be issued pursuant to any such adjustment and any fractional shares or
securities resulting from such adjustment shall be eliminated in each case by
rounding downward to the nearest whole number of shares or securities. If and
when any event(s) described in the preceding sentence occur, all Plan provisions
shall apply to such new, additional or different shares or securities.
ARTICLE VI
DISTRIBUTIONS
Except as otherwise provided in this Plan, the Committee shall direct
the Trustee to distribute to each Participant (or, in the event of the
Participant's death prior to distribution, to the executors or administrators of
the Participant's estate or to the Participant's Beneficiary in accordance with
Section 10.01) certificates representing shares of Stock allocated to the
Participant's Stock Account within ninety (90) days following the date on which
the Participant or Beneficiary becomes 100% vested with respect to such shares
of Stock. 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. No interest shall be payable by the Company or the Trust on any
dividends allocated to a Participant's Stock Account.
Any Participant or Beneficiary who accepts a distribution of Stock or
cash under the Plan shall be deemed to have represented and certified at the
time of such distribution that he or she has complied with all the terms and
conditions of the Plan.
ARTICLE VII
VESTING
7.01 In General. Except as otherwise specified in this Plan or by
the Committee, a Participant's interest in shares of Stock in his or her Stock
Account shall become 100% vested upon the fourth anniversary of the date upon
which such shares are allocated to such Stock Account, provided that the
Participant's interest in such shares shall not become vested (and such interest
shall be forfeited, with the Participant having no further rights with respect
to such shares) if a Termination of Employment occurs with respect to such
Participant prior to such fourth anniversary.
7.02 Accelerated Vesting in the Event of Retirement or Disability.
Notwithstanding the provisions of Section 7.01 of this Article VII, and except
as otherwise specified by the Committee, in the event a Termination of
Employment occurs with respect to a Participant by reason of Retirement or
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<PAGE> 8
Disability of the Participant, then such Participant's interest in shares of
Stock in his or her Stock Account at the time of such Termination of Employment
shall immediately become 100% vested. Whether a Termination of Employment occurs
by reason of Retirement or Disability shall be determined by the Committee,
whose determination shall be final and conclusive.
7.03 Accelerated Vesting in the Event of Death. Notwithstanding the
provisions of Section 7.01 of this Article VII, and except as otherwise
specified by the Committee, in the event a Participant dies while an Employee of
the Company, such Participant's interest in shares of Stock in his or her Stock
Account at the time of death shall immediately become 100% vested. Whether a
Termination of Employment occurs by reason of death shall be determined by the
Committee, whose determination shall be final and conclusive.
7.04 Accelerated Vesting in the Event of Change in Control.
Notwithstanding the provisions of Section 7.01 of this Article VII, and except
as otherwise specified by the Committee, in the event an involuntary Termination
of Employment occurs with respect to a Participant within twelve (12) months
following the occurrence of a Change in Control and such involuntary Termination
of Employment is not directly attributable to the actions of the Participant,
such Participant's interest in shares of Stock in his or her Stock Account at
the time of such involuntary Termination of Employment shall become 100% vested
at such time. Whether an involuntary Termination of Employment occurs within
twelve (12) months following a Change in Control, and whether such involuntary
Termination of Employment is directly attributable to the actions of the
Participant, shall be determined by the Committee, whose determination shall be
final and conclusive.
7.05 Partial Vesting in the Event of Certain Involuntary
Terminations of Employment after Third Anniversary. Notwithstanding the
provisions of Section 7.01 of this Article VII, and except as otherwise
specified by the Committee, in the event an involuntary Termination of
Employment occurs with respect to a Participant by reason of layoff, reduction
in force or similar type of action by the Company not directly attributable to
the actions of the Participant (and not by reason of Retirement, death,
Disability, or Change in Control), on or after the third anniversary of the date
upon which shares are allocated to such Participant's Stock Account (but prior
to the fourth anniversary of such allocation date), such Participant's interest
in 75% of such shares of Stock that were allocated to his or her Stock Account
on such allocation date shall become 100% vested upon such involuntary
Termination of Employment and such Participant's interest in the remaining
unvested shares of Stock in his or her Stock Account shall be immediately
forfeited with the Participant having no further rights with respect thereto.
Whether an involuntary Termination of Employment occurs on or after the third
anniversary of an allocation date shall be determined by the Committee, whose
determination shall be final and conclusive.
7.06 Reallocation of Forfeited Stock. In the event that, during a
Plan Year, any Stock in a Participant's Stock Account is forfeited as described
in this Article VII, such forfeited Stock shall be reallocated among the Stock
Accounts of Participants who are Employees of the Company on the last day of
such Plan Year in the proportion that each Participant's allocation in respect
of IRI's contributions for such Plan Year bears to the allocations of such
contributions for all Participants who are Employees on the last day of such
Plan Year, or in such other manner as may be determined by the Committee in its
sole discretion. The Committee shall specify the terms and conditions (including
timing) under which each such Participant shall vest in such reallocated
amounts.
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ARTICLE VIII
ADMINISTRATION OF PLAN
8.01 The Committee The Plan shall be administered by the
compensation committee or any other committee appointed by the Board pursuant to
this Section 8.01. To the extent required for transactions under the Plan to
qualify for the exemptions available under Rule 16b-3 promulgated under the
Exchange Act, all actions relating to Participants who are subject to Section 16
of the Exchange Act may be taken by the Board or a committee designated by the
Board composed of two or more members, each of whom is a "non-employee director"
within the meaning of Exchange Act Rule 16b-3.
8.02 Plan Administered by Committee. The Committee shall administer
the Plan and shall have complete control in the administration thereof. Without
limiting the preceding sentence, the Committee shall have the authority in its
sole discretion to (a) exercise all of the powers granted to it under the Plan,
(b) construe, interpret and implement the Plan, (c) prescribe, amend and rescind
rules and regulations relating to the Plan, including rules governing its own
operations, (d) make all determinations necessary or advisable in administering
the Plan, and (e) correct any defect, supply any omission and reconcile any
inconsistency in the Plan. 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 Committee member is a Participant, that
member may not decide any matter or question concerning any payments to be made
to that member from the Trust (other than matters or questions that the member
would have the right to decide even if he or she were not a member). Action by
the Committee may be taken by the vote of a majority of its disinterested
members. Any action may be taken by a written instrument signed by a majority of
the 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. In exercising any of its discretionary powers with respect to the
administration of the Plan, the Committee shall act in a uniform and
nondiscriminatory manner and for the exclusive benefit of Participants and their
Beneficiaries. The Board shall have no responsibility for the operation of the
Plan, except as otherwise provided herein.
8.03 Power of Delegation. The Committee may allocate among its
members or delegate to any person who is not a member of the Committee any
administrative responsibility which it has hereunder. No member of the Board or
the Committee or any Employee of the Company shall be liable for any action or
determination made in good faith with respect to the Plan. Each such person
shall be indemnified and held harmless by the Company against and from any loss,
cost, liability, or expense that may be imposed upon or incurred by such person
in connection with or resulting from any action, suit or proceeding to which
such person may be a party or in which such person may be involved by reason of
any action taken or failure to act under the Plan and against and from any and
all amounts paid by such person, with the Company's approval, in settlement
thereof, or paid by such person in satisfaction of any judgment in any such
action, suit or proceeding against such person, provided that the Company shall
have the right, at its own expense, to assume and defend the same. Except as
otherwise agreed by the Company in writing, the foregoing right of
indemnification shall not be available to a person to the extent that a final
judgment or other final adjudication binding upon such person establishes that
the acts or omissions of such person giving rise to the indemnification claim
resulted from such person's bad faith, fraud or willful criminal act or
omission. The responsibility of the Committee with respect to the management or
control of the assets of the Trust may be delegated or allocated to the Trustee.
Any delegation or allocation of responsibility pursuant to this Section shall be
evidenced by the minutes of the meeting of the Committee at which such
delegation or allocation was approved or, if no such meeting
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was held, by the writing under which such action was taken.
8.04 Communication by Committee. Decisions and directions of the
Committee may be communicated to the Trustee, a Participant, a Beneficiary, the
Company, or any other person who is to receive such decision or direction by a
document signed by any one or more members of the Committee (or persons other
than members) so authorized, and such decision or direction of the Committee may
be relied upon by the recipient as being the decision or direction of the
Committee. The Committee may authorize one or more of its members, or a designee
who is not a member, to sign on behalf of the entire Committee.
ARTICLE IX
AMENDMENTS
The Committee reserves the right at any time and from time to time to
modify, alter, amend, or terminate the Plan or the Trust Agreement; provided
that (a) no such action 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) any modification,
alteration or amendment to the Plan shall be in writing signed by the Chief
Executive Officer of the Company or his designee, (c) no modification,
alteration or amendment to the Plan 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 their Beneficiaries, or which would
cause any part of the assets of the Trust to revert to or become the property of
the Company, (d) the duties and liabilities of the Trustee cannot be changed
substantially without the consent of the Trustee, and (e) the Trust may not be
amended to make the Trust revocable. The Committee reserves the right to (a)
accelerate the vesting of Participants' Stock Accounts and in its discretion
provide that Stock distributed from such Stock Accounts may not be transferable
until the dates as of which such Stock would have otherwise become vested and
(b) make distributions to Participants upon the termination of the Plan.
ARTICLE X
MISCELLANEOUS
10.01 Designation of Beneficiaries. A Participant may designate, in
accordance with procedures established by the Committee, a Beneficiary or
Beneficiaries (in any order of priority) to receive all or part of the amounts
which become payable hereunder in the event of or following such Participant's
death. The designation shall be made by written notice filed with the Committee,
and the Participant may change his designated Beneficiary at any time by
designating a new Beneficiary or Beneficiaries in the same manner, or may revoke
a prior designation by written notice to the Committee, and notice need not be
given to any prior designated Beneficiary. In the event of a Participant's
death, the amounts payable hereunder with respect to which a designation of
Beneficiary has been made and is in effect shall be paid in accordance with the
Plan to such designated Beneficiary or Beneficiaries. Any amounts payable upon
death and not subject to such designation shall be distributed to the
Participant's estate. A Beneficiary shall have no rights under the Plan other
than the right to receive such amounts, if any, as may be payable under this
Section.
10.02 Nonassignability. No rights granted to any Participant or any
Beneficiary under the Plan (including any interest in the Accounts) may be sold,
exchanged, transferred, assigned, pledged,
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hypothecated or otherwise disposed of (including through the use of any
cash-settled instrument), whether voluntarily or involuntarily, other than by
will or by the laws of descent and distribution or otherwise in accordance with
Section 10.01. Any assignment in violation of the provisions of this Section
shall be void. All the terms of this Plan shall be binding upon such permitted
successors and assigns.
10.03 Plan Creates No Employment Rights. This Plan shall not be
deemed to constitute a contract between the Company and any Employee or other
person whether or not in the employ of the Company, nor shall anything herein
contained be deemed to give an Employee or any other person, whether or not in
the employ of the Company, any right to be retained in the employ of the
Company, or to interfere with the right of the Company to discharge an Employee
at any time and to treat him or her without any regard to the effect which such
treatment might have upon him or her as a Participant in the Plan, or any right
to any payment whatsoever, except to the extent expressly provided for
hereunder.
10.04 Limit on Claims and Liability. No person shall have any right
or interest in the Trust other than as provided herein. The assets of the Trust
shall under no circumstances be available to the creditors of the Company. All
distributions under the Plan shall be paid or provided solely from the Trust.
The Company assumes no responsibility or liability, including, without
limitation, any responsibility or liability for consequential or punitive
damages of any kind, to any Participant or Beneficiary relating to the Stock or
other assets contributed to the Trust. Any final distribution to any Participant
or Beneficiary(ies) in accordance with the provisions of the Plan shall be in
full satisfaction of all claims that such Participant and Beneficiary(ies) have
against the Trust, the Trustee, the Committee, the Board, the Company, and its
Employees with respect to the Plan or Trust. Each Participant recognizes and
agrees that prior to being selected by the Committee to participate in the Plan
such Participant has no right to any benefits hereunder. Accordingly, in
consideration of a Participant's selection to participate in the Plan, each
Participant expressly waives any right to contest the amount of any contribution
to the Plan, the terms of the Plan, and any reasonable determination, action or
omission by the Committee, the Company, or the Board, or any amendment to the
Plan (other than an amendment to which such Participant's consent is expressly
required by Article IX) which is permitted under the provisions of the Plan.
10.05 Choice of Forum; Timely Notice of Action.
(a) The Company and each Participant, as a condition to such
Participant's participation in the Plan, hereby irrevocably submits to
the exclusive jurisdiction of any state or federal court located in the
City of Chicago over any suit, action or proceeding arising out of or
relating to or concerning the Plan. This includes any suit, action or
proceeding to compel arbitration or to enforce an arbitration award.
The Company and each Participant, as a condition to such Participant's
participation in the Plan, acknowledge that the forum designated by
this Section 10.05(a) has a reasonable relation to the Plan, and to the
relationship between such Participant and the Company. Notwithstanding
the foregoing, nothing herein shall preclude the Company from bringing
any action or proceeding in any other court for the purpose of
enforcing the provisions of this Section 10.05.
(b) The agreement by the Company and each Participant as to
forum is independent of the law that may be applied in the action, and
the Company and each Participant, as a condition to such Participant's
participation in the Plan, (i) agree to such forum even if the forum
may under applicable law choose to apply non-forum law, (ii) hereby
waive, to the fullest extent permitted by applicable law, any objection
which the Company or such Participant now or hereafter may have
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<PAGE> 12
to personal jurisdiction or to the laying of venue of any such suit,
action or proceeding in any court referred to in Section 10.05(a),
(iii) undertake not to commence any action arising out of or relating
to or concerning the Plan in any forum other than the forum described
in this Section 10.05, (iv) agree to initiate any suit, action or
proceeding arising out of or relating to or concerning the Plan within
twelve (12) months after the occurrence of the conduct giving rise to
any such suit, action or proceeding, and (v) agree that, to the fullest
extent permitted by applicable law, a final and non-appealable judgment
in any such suit, action or proceeding in any such court shall be
conclusive and binding upon the Company and each Participant.
10.06 Governing Law. All rights and obligations under the Plan shall
be governed by and construed in accordance with the laws of the State of
Illinois, without regard to principles of Conflict of Laws.
10.07 Taxes and Withholding.
(a) Upon a Participant's vesting in all or any portion of his
or her Stock Account, or in connection with any distribution or other
event that gives rise to a United States federal or any other
governmental tax withholding obligation relating to the Plan
(including, without limitation, FICA tax), the Committee shall be
entitled to require that the Participant remit to the Company an amount
sufficient in the opinion of the Committee to satisfy such withholding
obligation. Alternatively, at the discretion of the Committee, the
Participant may elect to satisfy the withholding obligation described
above by any other mechanism as may be required or appropriate to
conform with local tax and other rules. If the Participant does not
satisfy the withholding obligation in accordance with any of the
methods described above in this Section 10.07(a), the Committee may
direct the Trustee to cause such withholding taxes to be deducted or
withheld from the vested portion of the Participant's Stock Account or
any payment or distribution to the Participant pursuant to the Plan,
and the Company may deduct or withhold (or cause to be deducted or
withheld) such taxes from any other payment or distribution by the
Company to the Participant.
(b) The Trustee shall transfer to the Company any amounts
(cash or shares of Stock) withheld or received from the Participant
pursuant to Section 10.07(a), and any such amounts transferred to the
Company from the Participant's Stock Account shall thereupon cease to
be allocated to such Stock Account. Any transfer of cash or shares of
Stock from the Participant's Stock Account by the Trustee pursuant to
this Section 10.07 shall be treated as a distribution from the Trust to
such Participant and an election by the Participant to have such cash
or shares of Stock applied to satisfy the withholding obligation.
(c) No Participant may make an election pursuant to Section
83(b) of the Code with respect to his or her interest in the Trust, or
with respect to any shares of Stock or any other property held by the
Trust.
10.08 Right of Offset. The Committee shall have the right to direct
the Trustee to withhold distribution of the vested portion of a Participant's
Stock Account until the Participant settles any outstanding amounts (including,
without limitation, travel and entertainment or advance account balances, loans,
or amounts repayable to the Company pursuant to tax equalization, housing,
automobile, tuition reimbursement or other employee programs) such Participant
then owes to the Company.
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<PAGE> 13
10.09 Consents and Legends. The vesting and distribution to a
Participant of any shares of Stock may be conditioned on the receipt to the full
satisfaction of the Committee of (a) any and all listings, registrations or
qualifications in respect thereof upon any securities exchange or under any
federal, state or local law, or law, rule or regulation of a jurisdiction
outside the United States, (b) any and all written agreements and
representations by the grantee with respect to the disposition of shares, or
with respect to any other matter, which the Committee shall deem necessary or
desirable to comply with the terms of any such listing, registration or
qualification or to obtain an exemption from the requirement that any such
listing, qualification or registration be made, (c) any and all other consents,
clearances and approvals by any governmental or other regulatory body or any
stock exchange or self-regulatory agency that the Committee may determine to be
necessary or advisable and (d) any and all consents or authorizations required
to comply with, or to be obtained under, applicable foreign, federal, state or
local law or otherwise required by the Committee. Nothing herein shall require
the Company to list, register or qualify the shares of Stock on any securities
exchange. The Company may affix to any stock certificate (or other document or
evidence of ownership) representing shares of Stock distributed under the Plan
any legend that the Committee determines in its sole discretion to be necessary
or advisable (including to reflect any restrictions to which a Participant may
be subject under a separate agreement with the Company). The Company may advise
the transfer agent to place a stop order against any legended shares of Stock.
10.10 Expenses. All expenses incurred by the Committee and the
Trustee in connection with administering this Plan and the Trust shall be paid
by the Company to the extent not paid from cash dividends, or proceeds from
sales of Stock, held in the Unallocated Stock Account. All taxes imposed on the
Trust related to income credited to or attributable to Trust assets shall be
paid from such assets and charged against the Stock Account to which the income
is allocated as though it were payable directly to the Participant.
10.11 No Third Party Beneficiaries. Except as expressly
provided herein, the Plan shall not confer on any person other than the Company
and any Participant any rights or remedies thereunder.
10.12 Successors and Assigns. The terms of this Plan shall be
binding upon and inure to the benefit of the Company and its successors and
assigns.
10.13 Plan Headings. The headings in this Plan have been inserted
for convenience or reference only, and are to be ignored in any construction of
the provisions hereof.
10.14 Number and Gender. In the construction of this Plan, the
masculine shall include the feminine and the singular the plural, and vice
versa, in all cases where such meanings would be appropriate.
10.15 Severability of Provisions. If any provision of this Plan or
the application of such provision to any person or circumstance shall be held
invalid, the remainder of this Plan (and the application of such provision to
any person or circumstance other than the person or circumstance to which it is
held invalid) shall not be affected thereby. The Plan contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations and warranties between them, whether written or
oral with respect to the subject matter hereof.
IN WITNESS WHEREOF, and as evidence of the adoption of this Plan
effective as of December
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3, 1999, by the Company, it has caused the same to be signed by its duly
authorized officers this ____ day of December, 1999.
INFORMATION RESOURCES, INC.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
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<PAGE> 1
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.
<PAGE> 2
(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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<PAGE> 3
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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<PAGE> 4
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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<PAGE> 5
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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<PAGE> 6
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
- --------------------------------- -----------------------------
Its
-----------------------------
ATTEST/WITNESS LASALLE BANK
NATIONAL ASSOCIATION
By
- --------------------------------- ----------------------------
Its
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