ADOPTION AGREEMENT Exhibit No. 10.20
ARTICLE 1
1.01 PLAN INFORMATION
(a) Name of Plan:
This is the Fair, Isaac Supplemental Retirement and Savings
Plan (the "Plan").
(b) Name of Plan Administrator, if not the Employer:
Address:
Phone Number:
The Plan Administrator is the agent for service of legal
process for the Plan.
(c) Three Digit Plan Number: 004
(d) Plan Year End (month/day): 9/30
(e) Plan Status (check one):
(1) |X| Effective Date of new Plan: 11/1/94
(2) |_| Amendment Effective Date:
The original effective date of the Plan: 11/1/94
1.02 EMPLOYER
(a) The Employer is: Fair, Isaac and Company, Incorporated
Address: 120 North Redwood Drive
San Rafael, CA 94903
Contact's Name: John Waller
Telephone Number: (415) 491-5282
(1) Employer's Tax Identification Number: 94-1499887
(2) Business form of Employer (check one):
(A) |X| Corporation
(B) |_| Sole proprietor or partnership
(C) |_| Subchapter S Corporation
(3) Employer's fiscal year end: 9/30
(b) The term "Employer" includes the following Related Employer(s):
(as defined in Section 2.10(a)(21)):
Fair, Isaac International Corporation, Fair, Isaac
International Ltd, Fair, Isaac International, S.A.
Corporation, Fair, Isaac International Canada
Corporation, Fair, Isaac International France
Corporation, Fair, Isaac International Germany
Corporation, Fair, Isaac International Japan
Corporation, Fair, Isaac International UK
Corporation.
1.03 COVERAGE
(a) Only those Employees listed in Attachment A will be eligible to
participate in the Plan.
(b) The Entry Date(s) shall be (check one):
(1) |_| the first day of each Plan Year.
(2) |_| the first day of each Plan Year and the date six
months later.
(3) |X| the first day of each Plan Year and the first day
of the fourth, seventh, and tenth months.
(4) |_| the first day of each month.
1.04 COMPENSATION
For purposes of determining Contributions under the Plan, Compensation
shall be as defined in Section 2.01(a)(6), but excluding (check the
appropriate box(es)):
(a) |X| Overtime Pay.
(b) |_| Bonuses.
(c) |_| Commissions.
(d) |X| The value of a qualified or a non-qualified stock
option granted to an Employee by the Employer to
the extent such value is includable in the Employee's
taxable income.
(e) |_| No exclusions.
1.05 CONTRIBUTIONS
(a) Deferral Contributions. The Employer shall make a Deferral
Contribution in accordance with Section 4.01 on behalf of each
Participant who has an executed salary reduction agreement in
effect with the Employer for the Plan Year (or portion of the
Plan Year) in question, not to exceed 25% of Compensation for
that Plan Year.
Section 2.01(a)(6):
"Compensation" shall mean for purposes of Article 4
(Contributions) wages as defined in Section 3401(a) of the
Code and all other payments of compensation to an Employee by
the Employer (in the course of the Employer's trade or
business) in excess of $150,000 in any Plan Year for which the
Employer is required to furnish the Employee a written
statement under Sections 6041(d) and 6051(a)(3) of the Code,
excluding overtime pay, the value of a qualified or
non-qualified stock option granted to an Employee by the
Employer, reimbursements or other expense allowances, fringe
benefits (cash and non-cash), moving expenses, deferred
compensation and welfare benefits, but including amounts that
are not includable in the gross income of the Participant
under a salary reduction agreement by reason of the
application of Sections 125, 401(a)(8), 401(h), or 403(b) of
the Code. Compensation must be determined without regard to
any rules under Section 3401(a) of the Code that limit the
remuneration included in wages based on the nature or location
of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the
Code).
Compensation shall generally be based on the amount that would
have been actually paid to the Participant during the Plan
Year but for an election under Section 4.01.
In the case of any Self-Employed Individual or an
Owner-Employee, Compensation shall mean the Individual's
Earned Income.
(b) |_| Matching Contributions
(1) The Employer shall make a Matching Contribution on
behalf of each Participant in an amount equal to the
following percentage of a Participant's Deferral
Contributions during the Plan Year (check one):
(A) |_| 50%
(B) |_| 100%
(C) |_| ____%
(D) |_| (Tiered Match) ___% of the first
___% of the Participant's
Compensation contributed to
the Plan,
___% of the next ___% of the
Participant's Compensation
contributed to the Plan,
___% of the next ___% of the
Participant's Compensation
contributed to the Plan.
(E) |X| The percentage declared for the
year, if any, by a Board of
Directors' resolution.
(F) |_| Other:
(2) |X| Matching Contribution Limits (check the
appropriate box(es)):
(A) |X| Deferral Contributions in excess of
6% of the Participant's Compensation
for the period in question shall not
be considered for Matching
Contributions.
Note: If the Employer elects a percentage
limit in (A) above and requests the
Trustee to account separately for
matched and unmatched Deferral
Contributions, the Matching
Contributions allocated to each
Participant must be computed, and
the percentage limit applied, based
upon each period.
(B) |X| Matching Contributions for each
Participant for each Plan Year shall
be limited to $7,500.
(3) Eligibility Requirement(s) for Matching Contributions
A Participant who makes Deferral Contributions during
the Plan Year under Section 1.05(a) shall be entitled
to Matching Contributions for that Plan Year if the
Participant satisfies the following requirement(s)
(Check the appropriate box(es). Options (B) and (C)
may not be elected together):
(A) |_| Is employed by the Employer on the
last day of the Plan Year.
(B) |_| Earns at least 500 Hours of
Service during the Plan Year.
(C) |X| Earns at least 1,000 Hours of
Service during the Plan Year.
(D) |_| No requirements.
Note: If option (A), (B), or (C) above is
selected then
Matching Contributions can only be
made by the Employer after the Plan
Year ends. Any Matching Contribution
made before Plan Year end shall not
be subject to the eligibility
requirements of this Section
1.05(b)(3).
1.06 DISTRIBUTION DATES
A Participant may elect to receive a distribution or commence
distributions from his Account pursuant to Section 8.02 upon the
following date(s) (check the appropriate box(es). If Option (c) is
elected, then options (a) and (b) may not be elected):
(a) |_| Attainment of Normal Retirement Age. Normal
Retirement Age under the Plan is (check one):
(1) |X| age 65
(2) |_| age ____ (specify from 55 through
64).
(3) |_| later of the age ____ (cannot exceed
65) or the fifth anniversary of the
Participant's Commencement Date.
(b) |_| Attainment of Early Retirement Age. Early Retirement
Age is the first day of the month after the
Participant attains age 55 (specify 55 or greater)
and completes 10 Years of Service for Vesting.
(c) |X| Termination of employment with the Employer.
Section 1.05(b)(3):
Eligibility Requirement(s) for Matching Contributions
A Participant who makes Deferral Contributions during the Plan
Year under Section 1.05(a) shall be entitled to Matching
Contributions for that Plan Year if the Participant earns at
least 1,000 Hours of Service during the Plan Year. A
Participant who makes Deferral Contributions during the Plan
Year shall also be entitled to Matching Contributions for that
Plan Year if the Participant ceases employment after having
attained age 65, or having attained age 55 with at least ten
Years of Service for Vesting, or by reason of disability or
death.
1.07 VESTING SCHEDULE
(a) The Participant's vested percentage in Matching Contributions
elected in Section 1.05(b) shall be based upon the schedule(s)
selected below.
(1) |_| N/A - No Matching Contributions
(2) |_| 100% Vesting immediately
(3) |_| 3 year cliff (see C below)
(4) |X| 5 year cliff (see D below)
(5) |_| 6 year graduated (see E below)
(6) |_| 7 year graduated (see F below)
(7) |_| G below
(8) |_| Other (Attachment "B")
Years of
Service Vesting Schedule
For
Vesting C D E F G
------- - - - - -
0 0% 0% 0% 0% -----
1 0% 0% 0% 0% -----
2 0% 0% 20% 0% -----
3 100% 0% 40% 20% -----
4 100% 0% 60% 40% -----
5 100% 100% 80% 60% -----
6 100% 100% 100% 80% -----
7 100% 100% 100% 100% 100%
(b) |_| Years of Service for Vesting shall exclude (check
one):
(1) |_| for new plans, service prior to the
Effective Date as defined in Section
1.01(e)(1).
(2) |_| for existing plans converting from another
plan document, service prior to the original
Effective Date as defined in Section
1.01(e)(2).
(c) |_| A Participant will forfeit his Matching Contributions
upon the occurrence of the following event(s):
(d) A Participant will be 100% vested in his Matching
Contributions upon (check the appropriate box(es), if any):
(1) |X| Normal Retirement Age (as defined in Section
1.06(a)).
(2) |X| Early Retirement Age (as defined in Section
1.06(b)).
(3) |X| Death
1.08 PREDECESSOR EMPLOYER SERVICE
|_| Service for purposes of vesting in Section 1.07(a) shall
include service with the following employer(s):
(a)
(b)
(c)
(d)
1.09 HARDSHIP WITHDRAWALS
Participant withdrawals for hardship prior to termination of employment
(check one):
(a) |_| will be allowed in accordance with Section 7.07,
subject to a $_____ minimum amount. (Must be at least
$1,000)
(b) |X| will not be allowed
---
1.10 DISTRIBUTIONS
Subject to Articles 7 and 8, distributions under the Plan will be paid
(check the Appropriate box(es)):
(a) |X| as a lump sum
(b) |X| under a systematic withdrawal plan (installments) not
to exceed 10 years.
1.11 INVESTMENT DECISIONS
(a) Investment Directions
Investments in which the Accounts of Participants shall be
treated as invested and reinvested shall be directed (check
one):
(1) |_| by the Employer among the options listed in
(b) below.
(2) |X| by each Participant among the options listed
in (b) below.
(3) |_| by each Participant with respect to Deferral
Contributions and by the Employer with
respect to Employer Matching Contributions.
The Employer must direct the Employer
Matching Contributions among the same
investment options made available for
Participant directed sources listed in (b)
below.
(b) Plan Investment Options
Participant Accounts will be treated as invested among the
Fidelity Funds listed below pursuant to Participant and/or
Employer directions.
Fund Name Fund Number
(1) Fidelity Retirement Government 0631
Money Market Portfolio
(2) Fidelity Investment Grade Bond Fund 0026
(3) Fidelity Puritan(TM)Fund 0004
(4) Fidelity Growth & Income Portfolio 0027
(5) Fidelity U.S. Equity Index Portfolio 0650
(6) Fidelity Magellan(R)Fund 0021
(7) Fidelity Contrafund 0022
Note: An additional annual record-keeping fee will be
charged for each fund in excess of five funds.
Note: The method and frequency for change of investments
will be determined under the rules applicable to the
selected funds. Information will be provided
regarding expenses, if any, for changes in investment
options.
1.12 RELIANCE ON PLAN
An adopting Employer may not rely solely on this Plan to ensure that
the Plan is "unfunded and maintained primarily for the purpose of
providing deferred compensation for a select group of management or
highly compensated employees" and exempt from Parts 2 through 4 of
Title I of the Employee Retirement Income Security Act of 1974 with
respect to the Employer's particular situation. This Agreement must be
reviewed by your attorney and/or accountant before it is executed.
This Adoption Agreement may be used only in conjunction with the
CORPORATEplan for Retirement Select Basic Plan Document.
EXECUTION PAGE
(Fidelity's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this 6th day of October, 1994.
Employer Fair, Isaac and Company Incorporated
By /s/
-------------------------------------------
Peter L. McCorkell
Title Vice President and Secretary
Employer Fair, Isaac and Company Incorporated
By /s/
-------------------------------------------
John C. Waller
Title Vice President, Human Resources
Attachment A
Pursuant to Section 1.03(a), the following are the Employees who are eligible to
participate in the Plan:
Rosenberger, Larry E.
Sanderson, Robert D.
Woldrich, John D.
Culhane, Patrick G.
Hopper, Mary A.
De Kerchove, Gerald
Kaye, Gordon
Robinson, Jeffrey F.
Nelson, O.D.
Roach, Barrett B.
Shediac, Rawy R.
Wier, Henry W.
Gerbino, John C.
McCorkell, Peter L.
Collins, Lauren
Barry, Michael C.
Sleath, Martin D.
Salvatto, Richard D.
Kreis, Joseph D.
Perlis, John H.
Morgan, Richard L.
Employer Fair, Isaac and Company Incorporated
By /s/
---------------------------------------
John C. Waller
Title Vice President, Human Resources
Date October 6, 1994
Note: The Employer must revise Attachment A to add employees as they become
eligible or delete employees who are no longer eligible.
The CORPORATEplan for Retirement Select Plan
BASIC PLAN DOCUMENT
IMPORTANT NOTE
This document is not an IRS approved Prototype Plan. An Adopting Employer may
not rely solely on this Plan to ensure that the Plan is "unfunded and maintained
primarily for the purpose of providing deferred compensation to a select group
of management or highly compensated employees" and exempt from parts 2 through 4
of Title I of the Employee Retirement Income Security Act of 1974 with respect
to the Employer's particular situation. Fidelity Management Trust Company, its
affiliates and employees may not provide you with legal advice in connection
with the execution of this document. This document should be reviewed by your
attorney and/or accountant prior to execution.
CPR SELECT
BASIC PLAN DOCUMENT
ARTICLE 1
ADOPTION AGREEMENT
ARTICLE 2
DEFINITIONS
2.01 - Definitions
ARTICLE 3
PARTICIPATION
3.01 - Date of Participation
3.02 - Resumption of Participation following Re-employment
ARTICLE 4
CONTRIBUTIONS
4.01 - Deferral Contributions
4.02 - Matching Contributions
4.03 - Time of Making Employer Contributions
ARTICLE 5
PARTICIPANTS' ACCOUNTS
5.01 - individual Accounts
ARTICLE 6
INVESTMENT OF CONTRIBUTIONS
6.01 - Manner of Investment
6.02 - Investment Decisions
ARTICLE 7
RIGHT TO BENEFITS
7.01 - Normal or Early Retirement
7.02 - Death
7.03 - Other Termination of Employment
7.04 - Separate Account
7.05 - Forfeitures
7.06 - Adjustment for Investment Experience
7.07 - Hardship Withdrawals
ARTICLE 8
DISTRIBUTION OF BENEFITS PAYABLE AFTER TERMINATION OF SERVICE
8.01 - Distribution of Benefits to Participants and Beneficiaries
8.02 - Determination of Method of Distribution
8.03 - Notice to Trustee
8.04 - Time of Distribution
ARTICLE 9
AMENDMENT AND TERMINATION
9.01 - Amendment by Employer
9.02 - Retroactive Amendments
9.03 - Termination
9.04 - Distribution Upon Termination of the Plan
ARTICLE 10
MISCELLANEOUS
10.01 - Communication to Participants
10.02 - Limitation of Rights
10.03 - Nonalienability of Benefits
10.04 - Facility of Payment
10.05 - Information between Employer and Trustee
10.06 - Notices
10.07 - Governing Law
ARTICLE 11
PLAN ADMINISTRATION
11.01 - Powers and Responsibilities of the Administrator
11.02 - Nondiscriminatory Exercise of Authority
11.03 - Claims and Review Procedures
11.04 - Cost of Administration
PREAMBLE
It is the intention of the Employer to establish herein an unfounded plan
maintained solely for the purpose of providing deferred compensation for a
select group of management of highly compensated employees for purposes of Title
I or ERISA.
Article 1. Adoption Agreement
Article 2. Definitions
2.01 - Definitions
(a) Wherever used herein, the following terms have the meanings set forth
below, unless a different meaning is clearly required by the context:
(1) "Account" means an account established on the books of the Employer
for the purpose of recording amounts credited on behalf of a Participant and any
income, expenses, gains or losses included thereon.
(2) "Administrator" means the Employer adopting this Plan, or other
person designated by the Employer in Section 1.01(b).
(3) "Adoption Agreement" means Article 1 under which the Employer
establishes and adopts or amends the Plan and designates the optimal provisions
selected by the Employer. The provisions of the Adoption Agreement shall be an
integral part of the Plan.
(4) "Beneficiary" means the person or persons entitled under Section
7.02 to receive benefits under the Plan upon the death of a Participant.
(5) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(6) "Compensation" shall mean for purposes of Article 4 (Contributions)
wages as defined in Section 3401(a) of the Code and all other payments of
compensation to an Employee by the Employer (in the course of the Employer's
trade or business) for which the Employer is required to finish the Employee a
written statement under Section 6041(d) and 6051(a) (3) of the Code, excluding
any items elected by the Employer in Section 1.04, reimbursements or other
expense allowances, fringe benefits (cash and non-cash), moving expenses,
deferred compensation and welfare benefits, but including amounts that are not
includable in the gross income of the Participant under a salary reduction
agreement by reason of the application of S3ctionsd 125, 402(A) (8), 402 (h), or
403(b) of the Code. Compensation must be determined without regard to any rules
under Section 3401(a) of the Code that limit the remuneration included in wages
based on the nature or location of the employment or the services performed
*such as the exception for agricultural labor in Section 3401(a) (2) of the
Code).
Compensation shall generally be based on the amount that would have
been actually paid to the Participant during the Plan Year but for an election
under Section 4.01.
In the case of any Self-employed Individual or an Owner-Employee,
Compensation shall mean the Individual's Earned Income.
(7) "Earned Income" means the net earnings of a Self-employed
Individual derived from the trade or business with respect to which the Plan is
established and for which the personal services of such individual are a
material income-providing factor, excluding any items not included in gross
income and the deductions allocated to such items, except that for taxable years
beginning after December 31, 1989, net earnings shall be determined with regard
to the deduction allowed under Section 164(f) of the Code, to the extent
applicable, to the Employer. Net earnings shall be reduced by contributions of
the Employer to any qualified plan, to the extent a deduction is allowed to the
Employer for such contributions under Section 404 of the Code.
(8) "Employee" means any Employee of the Employer, Self-employed
Individual or Owner-Employee.
(9) "Employer" means the Employer named in Section 1.02(a) and any
Related Employers designated in Section 1.02(b).
(10) "Employment Compensation Date" means the date on which the
Employee first performs an Hour of Service.
(11) "ERISA" means the Employee Retirement Income Security Act of
1974, as from time to time amended.
(12) "Fidelity Fund" means any Registered Investment Company which is
made available to plans utilizing the CORPORATEplan for Retirement Select Plan.
(13) "Fund Share" means the share, unit, or other evidence of
ownership in a Fidelity Fund.
(14) "Hour of Service" means, with respect to any Employee,
(A) Each hour for which the Employee is directly or
indirectly paid, or entitled to payment, for the performance
of duties for the Employer or a Related Employer, each such
hour to be credited to the Employee for the computation period
in which the duties were performed;
(B) Each hour for which the Employee is directly or
indirectly paid, or entitled to payment, by the Employer or
Related Employer (including payments made or due from a trust
fund or insurer to which the Employer contributes or pays
premiums) on account of a period of time during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday,
illness, incapacity, disability, layoff, jury duty, military
duty, or leave of absence, each such hour to be credited to
the Employer for the Eligibility
Computation Period in which such period of time occurs,
subject to the following rules:
(i) No more than 501 Hours of Service shall be credited under
this paragraph (B) on account of any single continuous period during
which the Employee performs no duties;
(ii) Hours of Service shall not be credited under this paragraph
(B) for a payment which solely reimburses the Employee for
medically-related expenses, or which is made or due under a plan
maintained solely for the purpose of complying with applicable
workmen's compensation, unemployment compensation or disability
insurance laws; and
(iii) If the period during which the Employee performs no duties
falls within two or more computation periods, and if the payment made
on account of such period is not calculated on the basis of units of
time, the Hours of Service credited with respect to such period shall
be allocated between not more than the first two such computation
periods on any reasonable basis consistently applied with respect to
similarly situated Employees; and
(C) Each hour not counted under paragraph (A) or (B) for which
back pay, irrespective or mitigation of damages, has been either
awarded or agreed to be paid by the Employer or a Related Employer,
each such hour to be credited to the Employee for the computation
period to which the award ort agreement pertains rather than the
computation period in which the award agreement or payment is made.
For purposes of determining Hours of Service, Employees of the
Employer and of all Related Employers will be treated as employed by a
single employer. For purposes of paragraphs (B) and (C) above, Hours of
Service will be calculated in accordance with the provisions of Section
2530.200b(b) of the Department of Labor regulations which are
incorporated herein by reference.
Solely for purposes of determining whether a break in service for
participation purposes has occurred in a computation period, an
individual who is absent from work for maternity or paternity reasons
shall receive credit for the Hours of Service which would otherwise
have been credited to such individual but for such absence, or in any
case in which such hours cannot be determined, 8 hours of service per
day of such absence. For purposes of this paragraph, an absence from
work for maternity reasons means an absence (1) by reason of the
pregnancy of the individual, (2) by reason of a birth of a child of the
individual, (3) by reason of the placement of a child with the
individual in connection with the adoption of such child by such
individual, or (4) for purposes of caring for such child for a period
beginning immediately following such birth or placement. The Hours of
Service credit under this paragraph shall be credited (1) in the
computation period in which the absence begins if the crediting is
necessary to prevent a break in service in that period, or (2) in all
other cases, in the following computation period.
(15) "Normal Retirement Age" means the normal retirement age specified in
Section 1.06(a) of the Adoption Agreement.
(16) "Owner-Employee" means, if the Employer is a sole proprietorship, the
individual who is the sole proprietor, or if the Employer is a partnership, a
partner who owns more than 10 percent of either the capital interest or the
profits interest of the partnership.
(17) "Participant" means any Employee who participates in the Plan in accordance
with Article 3 hereof.
(18) "Plan" means the plan established by the Employer as set forth herein as a
new plan or as an amendment to an existing plan, by executing the Adoption
Agreement, together with any and all amendments hereto.
(19) "Plan Year" means the 12 consecutive month period designated by the
Employer in Section 1.01(d).
(20) "Registered Investment Company" means any one or more corporations,
partnership or trusts registered under the Investment Company Act of 1940 for
which Fidelity Management and Research Company serves as investment advisor.
(21) "Related Employer" means any employer other than the Employer named in
Section 1.02(a), if the Employer and such other employer are members of a
controlled group of corporations (As defined in Section 414(B) of the Code) or
an affiliated service group (as defined in Section 414(m), or are trades or
businesses (whether or not incorporated) which are under common control (as
defined in Section 414(c)), or such other employer is required to be aggregated
with the Employer pursuant to regulations issued under Section 414(c).
(22) "Self-Employed Individual" means an individual who has Earned Income for
the taxable year from the Employer or who would have had Earned Income but for
the fact that the trade or business had no net profits for the taxable year.
(23) "Trust" means the trust created by the Employer.
(24) "Trust Agreement" means the agreement between the Employer and the Trustee,
as set forth in a separate agreement, under which assets are held, administered,
and managed subject to the claims of the Employer's creditors in the event of
the Employer's insolvency, until paid to Plan Participants and their
Beneficiaries as specified in the Plan.
(25) "Trust Fund" means the property held in the Trust by the Trustee.
(26) "Trustee" means the corporation or individuals appointed by the Employer to
administer the Trust in accordance with the Trust Agreement.
(27) "Years of Service for Vesting" means, with respect to any Employee, the
number of whole years of his periods of service with the Employer or a Related
Employers (the elapsed time method to compute vesting service), subject to any
exclusions elected by the Employer in Section 1.07(b). An Employee will receive
credit for the aggregate of all time period(s) commencing with the Employee's
Employment Commencement Date and ending on the date a break in service begins,
unless any
such years are excluded by Section 1.07(b). An Employee will also receive credit
for any period of severance of less than 12 consecutive months. Fractional
periods of a year will be expressed in terms of days.
In the case of a Participant who has 5 consecutive 1-year breaks in
service, all years of service after such breaks in service will be disregarded
for the purpose of vesting the Employer-derived account balance that accrued
before such breaks, but both pre-break and post-break service will count for the
purposes of vesting the Employer-derived account balance that accrues after such
breaks. Both accounts will share in the earnings and losses of the fund.
In the case of a Participant who does not have 5 consecutive 1-year
breaks in service, both the pre-break and post-break service will count in
vesting both the pre-break and post-break Employer-derived account balance.
A break in service is a period of severance of at least 12 consecutive
months. Period of severance is a continuous period of time during which the
Employee is not employed by the Employer. Such period begins on the date the
Employee retires, quits or is discharged, or if earlier, the 12-month
anniversary of the date on which the Employee was otherwise first absent from
service.
In the case of an individual who is absent from work for maternity or
paternity reasons, the 12 consecutive month period beginning on the first
anniversary of the first date of such absence shall not constitute a break in
service. For purposes of this paragraph, an absence from work for maternity or
paternity reasons means an absence (1) by reason of the pregnancy of the
individual, (2) by reason of the birth of a child of the individual, (3) by
reason of the placement of a child with the individual in connection with the
adoption of such child by such individual, or (4) for purposes of caring for
such child for a period beginning immediately following such birth or placement.
If the Plan maintained by the Employer is the plan of a predecessor
employer, an Employee's Year of Service for Vesting shall include years of
service with such predecessor employer. In any case in which the Plan maintained
by the Employer is not the plan maintained by a predecessor employer, service
for such predecessor shall be treated as service for the Employer to the extent
provided in Section 1.08.
(b) Pronouns used in the Plan are in the masculine gender but include the
feminine gender unless the context clearly indicates otherwise.
Article 3. Participation
3.01 - Date of Participation. An eligible Employee (as set forth in Section
1.03(a) will become a Participant in the Plan on the first Entry Date after
which he becomes an eligible Employee if he has filed an election pursuant to
Section 4.01. If the eligible Employee does not file an election pursuant to
Section 4.01 prior to his first Entry Date, then the eligible Employee will
become a Participant in the Plan as of the first day of a Plan Year for which he
has filed an election.
3.02 - Resumption of Participation following Re-employment. If a Participant
ceases to be an Employee and thereafter returns to the employ of the Employer,
he will
again become a Participant as of an Entry Date following the date on which he
completes an Hour of Service for the Employer following his re-employment, if he
is an eligible Employee as defined in Section 1.03(a), and has filed an election
pursuant to Section 4.01.
3.03 - Cessation or Resumption of Participation following a Change in Status. If
any Participant continues in the employ of the Employer or Related Employer but
ceases to be an eligible Employee as defined in Section 1.03(a), the individual
shall continue to be a Participant until the entire amount of his benefit is
distributed; however, the individual shall not be entitled to make Deferral
Contributions or receive an allocation of Matching contributions during the
period that he is not an eligible Employee. Such Participant shall continue to
receive credit for service completed during the period for purposes of
determining his vested interest in his Accounts. In the event that the
individual subsequently again becomes an eligible Employee, the individual shall
resume full participation in accordance with Section 3.01.
Article 4. Contributions
4.01 - Deferral Contributions. Each Participant may elect to execute a salary
reduction agreement with the Employer to reduce his Compensation by a specified
percentage not exceeding the percentage set forth in Section 1.05(A) and equal
to a whole number multiple of one (1) percent. Such agreement shall become
effective on the first day of the period as set forth in the Participant's
election. The election will be effective to defer Compensation relating to all
services performed in a Plan Year subsequent to the filing of such an election.
An election once made will remain in effect until a new election is made. A new
election will be effective as of the first day of the following Plan Year and
will apply only to Compensation payable with respect to services rendered after
such date. Amounts credited to a Participant's account prior to the effective
date of any new election will not be affected and will be paid in accordance
with that prior election. The Employer shall credit an amount to the account
maintained on behalf of the Participant corresponding to the amount of said
reduction. Under no circumstances may a salary reduction agreement be adopted
retroactively. A Participant may not revoke a salary reduction agreement for a
Plan year during that year.
4.02 - Matching Contributions. If so provided by the Employer in Section
1.05(b), the Employer shall make a Matching Contribution to be credited to the
account maintained on behalf of each Participant who had Deferral Contributions
made on his behalf during the year and who meets the requirement, if any, of
Section 1.05(b)(3). The amount of the Matching Contribution shall be determined
in accordance with Section 1.05(b).
4.03 - Time of Making Employer Contributions. The Employer will from time to
time make a transfer of assets to the Trustee for each Plan Year. The Employer
shall provide the Trustee with information on the amount to be credited to the
separate account of each Participant maintained under the Trust.
Article 5. Participants' Accounts
5.01. Individual Accounts. The Administrator will establish and maintain an
Account for each Participant which will reflect Matching and Deferral
Contributions credited to the Account on behalf of the Participant and earnings,
expenses, gains and losses credited thereto, and deemed investments made with
amounts in the Participant's Account. The
Administrator will establish and maintain such other accounts and records as it
decides in its discretion to be reasonably required or appropriate in order to
discharge its duties under the Plan. Participants will be furnished statements
of their Account values at least once each Plan Year.
Article 6. Investment of Contributions
6.01 - Manner of Investment. All amounts credited to the Accounts of
Participants shall be treated s though invested and reinvested only in eligible
investments selected by the Employer in Section 1.11(b).
6.02 - Investment Decisions. Investments in which the Accounts of Participants
shall be treated as invested and reinvested, shall be directed by the Employer
or by each Participant, or both, in accordance with the Employer's election in
Section 1.11 (a).
(a) All dividends, interest, gains and distributions of any nature earned
in respect of Fund Shares in which the Account is treated as investing shall be
credited to the Account as though reinvested in additional shares of that
Fidelity Fund.
(b) Expenses attributable to the acquisition of investments shall be
charged to the Account of the Participant for which such investment is made.
Article 7. Right to Benefits
7.01 - Normal or Early Retirement. If provided by the Employer in Section
1.07(d), each Participant who attains this Normal Retirement Age or Early
Retirement Age will have a nonforfeitable interest in his Account in accordance
with the vesting schedule elected in Section 1.07. If a Participant retires on
or after attainment of Normal or Early Retirement Age, such retirement is
referred to as a normal retirement. On or after his normal retirement, the
balance of the Participant's Account, plus any amounts thereafter credited to
his Account, subject to the provisions of Section 7.06, will be distributed to
him in accordance with Article 8.
If provided by the Employer in Section 1.06, a Participant who
separates from service before satisfying the age requirements for early
retirement, but has satisfied the service requirement, will be entitled to the
distribution of his Account, subject to the provisions of Section 7.06, in
accordance with Article 8, upon satisfaction of such age requirement.
7.02 - Death. If a Participant dies before the distribution of his Account has
commenced, or before such distribution has been completed, his Account shall
become vested in accordance with the vesting schedule elected in Section 1.07,
and his designated Beneficiary or Beneficiaries will be entitled to receive the
balance or remaining balance of his Account, plus any amounts thereafter
credited to his Account, subject to the provisions of Section 7.06. Distribution
to the Beneficiary or Beneficiaries will be made in accordance with Article 8.
A Participant may designate a Beneficiary or Beneficiaries, or change
any prior designation of Beneficiary or Beneficiaries by giving notice to the
Administrator on a form designated by the Administrator. If more than one person
is designated as the Beneficiary, their respective interests shall be as
indicated on the designation form.
A copy of the death notice or other sufficient documentation must be
filed with and approved by the Administrator. If upon the death of the
Participant there is, in the opinion of the Administrator, no designated
Beneficiary for party or all of the Participant's Account, such amount will be
paid to his surviving spouse or, if none, to his estate (such spouse or estate
shall be deemed to be the Beneficiary for purposes of the Plan). If a
Beneficiary dies after benefits to such Beneficiary have commenced, but before
they have been completed, and, in the opinion of the Administrator, no person
has been designated to receive such remaining benefits, then such benefits shall
be paid to the deceased Beneficiary's estate.
7.03 - Other Termination of Employment. If provided by the Employer in Section
1.06, if a Participant terminates his employment for any reason other than death
or normal retirement, he will be entitled to a termination benefit equal to (i)
the vested percentage(s) of the value of the Matching Contributions to his
Account, as adjusted for income, expense, gain, or loss, such percentage(s)
determined in accordance with the vesting schedule(s) selected by the Employer
in Section 1.07, and (ii) the value of the Deferral Contributions to his Account
as adjusted for income, expense, gain or loss. The amount payable under this
Section 7.03 will be subject to the provisions of Section 7.06 and will be
distributed in accordance with Article 8.
7.04 - Separate Account. If a distribution from a Participant's Account has been
made to him at a time when he has a nonforfeitable right to less than 100
percent of his Account, the vesting schedule in Section 1.07 will thereafter
apply only to amounts in his Account attributable to Matching Contributions
allocated after such distribution. The balance of his Account immediately after
such distribution will be transferred to a separate account which will be
maintained for the purpose of determining his interest therein according to the
following provisions.
At any relevant time prior to a forfeiture of any portion thereof under
Section 7.05, a Participant's nonforfeitable interest in his Account held in a
separate account described in the preceding paragraph will be equal to P(AB +
(RxD)) - (RxD), where P is the nonforfeitable percentage at the relevant time
determined under Section 7.05; AB is the account balance of the separate account
at the relevant time; D is the amount of the distribution; and R is the ratio of
the account balance at the relevant time to the account balance after
distribution. Following a forfeiture of any portion of such separate account
under Section 7.05 below, any balance in the Participant's separate account will
remain fully vested and nonforfeitable.
7.05 - Forfeitures. If a Participant terminates his employment, any portion of
his Account (including any amounts credited after his termination of employment)
not payable to him under Section 7.03 will be forfeited by him. For purposes of
this paragraph, if the value of a Participant's bested account balance is zero,
the Participant shall be deemed to have received a distribution of his vested
interest immediately following termination of employment. Such forfeitures will
be applied to reduce the contributions of the Employer under the Plan (or
administration expenses of the Plan).
7.06 - Adjustment for Investment Experience. If any distribution under this
Article 7 is not made in a single payment, the amount remaining in the Account
after the distribution will be subject to adjustment until distributed to
reflect the income and gain or
loss on the investments in which such amount is treated as invested and any
expenses properly charged under the Plan and Trust to such amounts.
7.07 - Hardship Withdrawals. Subject to the provisions of Article 8, a
Participant shall not be permitted to withdraw his Account (and earnings
thereon) prior to retirement or termination of employment, except if permitted
under Section 1.09, a Participant may apply to the Administrator to withdraw
some or all of his Account if such withdrawal is made on account of a hardship
as determined by the Employer.
Article 8. Distribution of Benefits Payable after Termination of Service.
8.01 - Distribution of Benefits to Participants and Beneficiaries.
(a) Distributions under the Plan to a Participant or to the Beneficiary of
the Participant shall be made in a lump sum in cash or, if elected by the
Employer in Section 1.10 and specified in the Participant's deferral election,
under a systematic withdrawal plan (installment(s)) not exceeding 10 years upon
retirement, death or other termination of employment.
(b) Distributions under a systematic withdrawal plan must be made in
substantially equal annual, or more frequent, installments, in cash, over a
period certain which does not extend 10 years. The period certain specified in a
Participant's first deferral election specifying distribution under a systematic
withdrawal plan shall apply to all subsequent elections of distributions under a
systematic withdrawal plan made by the Participant.
8.02 - Determination of Method of Distribution. The Participant will determine
the method of distribution of benefits to himself and the method of distribution
to his Beneficiary. Such determination will be made at the time the Participant
makes a deferral election. If the Participant does not determine the method of
distribution to him or his Beneficiary, the method shall be a lump sum.
8.03 - Notice to Trustee. The Administrator will notify the Trustee in writing
whenever any Participant or Beneficiary is entitled to receive benefits under
the Plan. The Administrator's notice shall indicate the form, amount and
frequency of benefits that such Participant or Beneficiary shall receive.
8.04 - Time of Distribution. In no event will distribution to a Participant be
made later than the date specified by the Participant in his salary reduction
agreement.
Article 9. Amendment and Termination.
9.01 - Amendment by Employer. The Employer reserves the authority to amend the
Plan by filing with the Trustee an amended Adoption Agreement, executed by the
Employer only, on which said Employer has indicated a change or changes in
provisions previously elected by it. Such changes are to be effective on the
effective date of such amended Adoption Agreement. Any such change
notwithstanding, no Participant's Account shall be reduced by such change below
the amount to which the Participant would have been entitled if he had
voluntarily left the employ of the Employer immediately prior to the date of the
change. The Employer may from time to time make any amendment to the Plan that
may be necessary to satisfy the Code or ERISA. The
Employer's board of directors or other individual specified in the resolution
adopting this Plan shall act on behalf of the Employer for purposes of this
Section 9.01.
9.02 - Retroactive Amendments. An amendment made by the Employer in accordance
with Section 9.01 may be made effective on a date prior to the first day of the
Plan Year in which it is adopted if such amendment is necessary or appropriate
to enable the Plan and Trust to satisfy the applicable requirements of the Code
or ERISA or to conform the Plan to any change in federal law or to any
regulations or ruling thereunder. Any retroactive amendment by the Employer
shall be subject to the provisions of Section 9.01.
9.03 - Termination. The Employer has adopted the Plan with the intention and
expectation that contributions will be continued indefinitely. However, said
Employer has no obligation or liability whatsoever to maintain the Plan for any
length of time and may discontinue contributions under the Plan or terminate the
Plan at any time by written notice delivered to the Trustee without any
liability hereunder for any such discontinuance or termination.
9.04 - Distribution upon Termination of the Plan. Upon termination of the Plan,
no further Deferral Contributions or Matching Contributions shall be made under
the Plan, but Accounts of Participants maintained under the Plan at the time of
termination shall continue to be governed by the terms of the Plan until paid
out in accordance with the terms of the Plan.
Article 10. Miscellaneous
10.01 - Communication to Participants. The Plan will be communicated to all
Participants by the Employer promptly after the Plan is adopted.
10.02 - Limitation of Rights. Neither the establishment of the Plan and the
Trust, nor any amendment thereof, nor the creation of any fund or account, nor
the payment of any benefits, will be construed as giving to any Participant or
other person any legal or equitable right against the Employer, Administrator or
Trustee, except as provided herein; and in no event will the terms of employment
or service of any Participant be modified or in any way affected hereby.
10.03 - Nonalienability of Benefits. The benefits provided hereunder will not be
subject to alienation, assignment, garnishment, attachment execution or levy of
any kind either voluntarily or involuntarily, and any attempt to cause such
benefits to be so subjected will not be recognized, except to such extent as may
be required by law.
10.04 - Facility of Payment. In the event the Administrator determines, on the
basis of medical reports or other evidence satisfactory to the Administrator,
that the recipient of any benefit payments under the Plan is incapable of
handling his affairs by reason of minority, illness, infirmity or other
incapacity, the Administrator may direct the Trustee to disburse such payments
to a person or institution designated by a court which has jurisdiction over
such recipient or a person or institution otherwise having the legal authority
under State law for the care and control of such recipient. The receipt by such
person or institution of any such payments shall be complete acquittance
therefore, and any such payment to the extent thereof, shall discharge the
liability of the Trust for the payment of benefits hereunder to such recipient.
10.05 - Information between Employer and Trustee. The Employer agrees to furnish
the Trustee, and the Trustee agrees to furnish the Employer with such
information relating to the Plan and Trust as may be required by the other in
order to carry out their respective duties hereunder, including without
limitation information required under the Code or ERISA and any regulations
issued or forms adopted thereunder.
10.06 - Notices. Any notice or other communication in connection with this Plan
shall be deemed delivered in writing if addressed as provided below and if
either actually delivered at said address or, in the case of a letter, three
business days shall have elapsed after the same shall have been deposited in the
United States mails, first-class postage prepaid and registered or certified:
(a) If to the Employer or Administrator, to it at the address set forth
in the Adoption Agreement, to the attention of the person specified to receive
notice in the Adoption Agreement.
(b) If to the Trustee, to it as the address set forth in the Trust
Agreement;
or, in each case at such other address as the addressee shall have specified by
written notice delivered in accordance with the foregoing to the addressor's
then effective notice address.
10.07 - Governing Law. The Plan and the accompanying Adoption Agreement will be
construed, administered and enforced according to ERISA, and to the extent not
preempted thereby, the laws of the Commonwealth of Massachusetts.
Article 11. Plan Administration.
11.01 - Powers and Responsibilities of the Administrator. The Administrator has
the full power and the full responsibility to administer the Plan in all of its
details, subject, however to the applicable requirements of ERISA. The
Administrator's powers and responsibilities include, but are not limited to, the
following:
(a) To make and enforce such rules and regulations as it deems necessary
or proper for the efficient administration of the Plan;
(b) To interpret the Plan, its interpretation thereof in good faith to be
final and conclusive on all persons claiming benefits under the Plan;
(c) To decide all questions concerning the Plan and the eligibility of
any person to participate in the Plan;
(d) To administer the claims and review procedures specified in Section
11.03;
(e) To compute the amount of benefits which will be payable to any
Participant, former Participant, or Beneficiary in accordance with the
provisions of the Plan;
(f) To determine the person or persons to whom such benefits will be
paid;
(g) To authorize the payment of benefits;
(h) To comply with the reporting and disclosure requirements of Part 1 of
Subtitle B of Title I or ERISA;
(i) To appoint such agents, counsel, accountants, and consultants as may
be required to assist in administering the Plan;
(j) By written instrument, to allocate and delegate its responsibilities,
including the formation of an Administrative Committee to administer the Plan.
11.02 - Nondiscriminatory Exercise of Authority. Whenever, in the administration
of the Plan, any discretionary action by the Administrator is required, the
Administrator shall exercise its authority in a nondiscriminatory manner so that
all persons similarly situation will receive substantially the same treatment.
11.03 - Claims and Review Procedures.
(a) Claims Procedure. If any person believes he is being denied any
rights or benefits under the Plan, such person may file a claim in writing with
the Administrator. If any such claim is wholly or partially denied, the
Administrator will notify such person of its decision in writing. Such
notification will contain (i) specific reasons for the denial, (ii) specific
reference to pertinent Plan provisions, (iii) a description of any additional
material or information necessary for such person to perfect such claim and an
explanation of why such material or information is necessary, and (iv)
information as to the steps to be taken if the person wishes to submit a request
for review. Such notification will be given within 90 days after the claim is
received by the Administrator (or within 180 days, if special circumstances
require an extension of time for processing the claim, and if written notice of
such extension and circumstances is given to such person within the initial
90-day period). If such notification is not given within such period, the claim
will be considered denied as of the last day of such period, and such person may
request a review of his claim.
(b) Review Procedure. Within 60 days after the date on which a person
receives a written notice of a denied claim (or, if applicable, within 60 days
after the date on which such denial is considered to have occurred), such person
(or his duly authorized representative) may (i) file a written request with the
Administrator for a review of his denied claim and of pertinent of pertinent
documents, and (ii) submit written issues and comments to the Administrator. The
Administrator will notify such person of its decision in writing. Such
notification will be written in a manner calculated to be understood by such
person and will contain specific reasons for the decision as well as specific
references to pertinent Plan provisions. The decision on review will be made
within 60 days after the request for review is received by the Administrator (or
within 120 days, if special circumstances require an extension of time for
processing the request, such as an election by the Administrator to hold a
hearing, and if written notice of such extension and circumstances is given to
such person within the initial 60-day period). If the decision on review is not
made within such period, the claim will be considered denied.
11.04 - Costs of Administration. Unless some or all costs and expenses are paid
by the Employer, all reasonable costs and expenses (including legal, accounting,
and Employee communication fees) incurred by the Administrator and the Trustee
in administering the Plan and Trust will be paid first from the forfeitures (if
any) resulting
under Section 7.05, then from the remaining Trust Fund. All such costs and
expenses paid from the Trust Fund will, unless allocable to the Accounts of
particular Participants, be charged against the Accounts of all Participants on
a prorata basis or in such other reasonable manner as may be directed by the
Employer.
TRUST AGREEMENT
Between
Fair, Isaac and Company, Incorporated
[Sponsor]
and
FIDELITY MANAGEMENT TRUST COMPANY
[Trustee]
Dated as of November 1, 1994
IMPORTANT NOTICE
This Trust Agreement may only be used in conjunction with the CORPORATEplan for
Retirement Select Plan Adoption Agreement and Basic Plan Document. An Employer
may not rely solely on said documents to ensure that the Plan is "unfounded and
maintained primarily for the purpose of providing deferred compensation to a
select group of management or highly compensated employees" and exempt from
parts 2 through 4 of Title I of the Employee Retirement Income Security Act of
1974 with respect to the Employer's particular situation. Fidelity Management
Trust Company, its affiliates and employees may not provide you with legal
advice in connection with the execution of this document. This document should
be reviewed by your attorney and/or accountant prior to execution.
TABLE OF CONTENTS
SECTION Page
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1. Trust 1
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(a) Establishment 1
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(b) Grantor Trust 1
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(c) Trust Assets 1
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(d) Non-Assignment 1
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2. Payments to Sponsor 2
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3. Disbursements 2
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(a) Directions from Administrator 2
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(b) Limitations 2
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4. Investment of Trust 2
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(a) Selection of Investment Options 2
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(b) Available Investment Options 2
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(c) Investment Direction 3
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(d) Mutual Funds 3
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(e) Trustee Powers 4
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5. Record Keeping and Administrative Services to be Performed 5
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(a) General 5
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(b) Accounts 5
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(c) Inspection and Audit 5
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(d) Effect of Plan Amendment 5
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(e) Returns, Reports and Information 6
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6. Compensation and Expenses 6
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7. Directions and Indemnification 6
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(a) Identity of Administrator 6
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(b) Directions from Administrator 6
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(c) Directions from Sponsor 6
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(d) Indemnification 7
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(e) Survival 7
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8. Resignation or Removal of Trustee 7
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(a) Resignation 7
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(b) Removal 7
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9. Successor Trustee 7
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(a) Appointment 7
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(b) Acceptance 7
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(c) Corporate Action 8
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10. Termination 8
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11. Resignation, Removal and Termination Notices 8
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12. Duration 8
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13. Insolvency of Sponsor 8
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14. Amendment or Modification 9
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15. General 10
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(a) Performance by Trustee, Its Agent or Affiliates 10
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(b) Entire Agreement 10
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(c) Waiver 10
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(d) Successors and Assigns 10
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(e) Partial Invalidity 10
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(f) Section Headings 10
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16. Governing Law 11
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(a) Massachusetts Law Controls 11
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(b) Trust Agreement Controls 11
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TRUST AGREEMENT, dated as of the 1st day of November, 1994, between Fair, Isaac
and Company, Incorporated a Delaware corporation, having an office 120 North
Redwood Drive, San Rafael, CA, 94903 (the "Sponsor"), and FIDELITY MANAGEMENT
TRUST COMPANY, a Massachusetts trust company, having an office at 82 Devonshire
Street, Boston, Massachusetts, 01209 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Fair, Isaac Supplemental
Retirement and Savings Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish an irrevocable trust and to
contribute to the trust assets that shall be held therein, subject to the claims
of the Sponsor's creditors in the event of Sponsors' Insolvency, as herein
defined, until paid to Plan participants and their beneficiaries in such manner
and at such times as specified in the Plan; and
WHEREAS, it is the intention of the Sponsor to make contributions to
the trust provide itself with a source of funds to assist it in the meeting of
its liabilities under the Plan; and
WHEREAS, the trustee is willing to hold and invest the aforesaid pan
assets in trust among several investment options selected by the Sponsor; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial record keeping and administrative functions under the Plan; and
WHEREAS, the Employer or such other individual named in the Plan is the
Administrator of the plan; and
WHEREAS, the Trustee is willing to perform record keeping and
administrative services for the Plan if the services are purely ministerial in
nature and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
SECTION 1.
1. Trust.
(a) Establishment.
The Sponsor hereby establishes a trust (hereinafter the "Trust"), with the
Trustee. The Trust shall consist of an initial contribution of money or other
property acceptable to the Trustee in its sole discretion, made by the Sponsor
or transferred from a previous trustee under the Plan, such additional sums of
money as shall from time to time be delivered to the Trustee under the Plan, all
investments made therewith and proceeds thereof, and all earnings and profits
thereon, less the payments that are made by the Trustee as provided herein,
without distinction between principal and income. The Trustee herby accepts the
Trust on the terms and conditions set forth in this Agreement. In accepting this
Trust, the Trustee shall be accountable for the assets received by it, subject
to the terms and conditions of this Agreement.
(b) Grantor Trust.
The Trust is intended to be a grantor of trust, of which the Sponsor is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(c) Trust Assets.
The principal of the Trust, and any earnings thereon shall be held separate and
apart from other funds of the Sponsor and shall be used exclusively for the uses
and purposes of Plan participants and general creditors as herein set forth.
Plan participants and their beneficiaries shall have no preferred claim o, or
any beneficial ownership interest in, any assets of the Trust. Any rights crated
under the Plan and this Trust Agreement shall be mere unsecured contractual
rights of Plan participants and their beneficiaries against the Sponsor. Any
assets held by the Trust will be subject to the claims of the Sponsor's general
creditors under federal and state law in the event of Insolvency, as defined in
Section 13(a).
(d) Non-Assignment.
Benefit payments to Plan participants and their beneficiaries funded under this
Trust may not be anticipated, assigned (either at law or in equity), alienated,
pledged, encumbered, or subjected to attachment, garnishment, levy, execution,
or other legal or equitable process.
SECTION 2.
2. Payments to Sponsor.
Except as provided under Section 13, the Sponsor shall have no right to
retain or divert to others any of the Trust assets before all payment of
benefits have been made to the participants and their beneficiaries pursuant to
the terms of the Plan.
SECTION 3.
3. Disbursements.
Directions from Administrator.
The Trustee shall disburse monies to the Sponsor for benefit payments in the
amounts that the Administrator directs from time to time in writing. The Trustee
shall have no responsibility to ascertain any direction's compliance with the
terms of the Plan or any applicable law. The Trustee shall not be responsible
for making benefit payments to the participants under the Plan, nor shall
Trustee be responsible for any Social Security or Federal, State or local income
tax reporting or withholding with respect to such Plan benefits.
Limitations.
The Trustee shall not be required to make any disbursement in excess of the net
realizable value of the assets of the Trust at the time of the disbursement. The
Trustee shall not be required to make any disbursement in cash unless the
Administrator has provided a written direction as to the assets to be converted
to cash for the purpose of making the disbursement.
SECTION 4.
4. Investment of Trust.
Selection of Investment Options.
The Trustee shall have no responsibility for the selection of investment options
under the Trust and shall not render investment advice to any person in
connection with the selection of such options.
Available Investment Options.
In accordance with Section 1.14 of the Plan, the Sponsor shall direct the
Trustee as to the investment options available under the Trust provided,
however, that the Trustee shall not be considered a fiduciary with investment
discretion. The Sponsor may add additional investment options with the consent
of the Trustee and upon amendment of the Plan.
Investment Direction.
In order to provide for an accumulation of assets comparable to the contractual
liabilities accruing under the Plan, the Sponsor may direct the Trustee in
writing to invest the assets held in the Trust to correspond to the hypothetical
investments made for
Participants under the Plan. Such directions may be made by Plan participants by
use of the telephone exchange system maintained for such purposes by the Trustee
or its agent. In the event that the Trustee fails to receive a proper direction
from the Sponsor or from Participants, the assets in question shall be invested
in Fidelity Retirement Money market Fund, or such other fund designated by the
Sponsor for this purpose, until the Trustee receives a proper direction.
Mutual Funds.
The Sponsor hereby acknowledges that it has received from the Trustee a copy of
the prospectus for each Mutual Fund selected by the Sponsor as a Plan investment
option. Trust investment in Mutual Funds shall be subject to the following
limitations:
Execution of Purchases and Sales.
Purchase and sales of Mutual funds (other than for Exchanges) shall be made on
the date on which the Trustee receives from the Sponsor in good order all
information and documentation necessary to accurately effect such purchases and
sales (or in case of a purchase, the subsequent date on which the Trustee has
received a wire transfer of funds necessary to make such purchase). Exchanges of
Mutual Funds shall be made on the same business day that the Trustee receives a
proper direction of received before 4:00 p.m. eastern time; if the direction is
received after 4:00 p.m. eastern time, the exchange shall be made the following
day.
Voting.
At the time of mailing of notice of each annual or special stockholders' meeting
of any Mutual Fund, the Trustee shall send a copy of the notice and all proxy
solicitation materials to each Plan participant who has shares of the Mutual
Fund credited to the participant's account, together with a voting direction
form for return to the Trustee or its designee. The participant shall have the
right to direct the Trustee as to the manner in which the Trustee is to vote the
shares credited to the participant's accounts (both vested and unvested). The
Trustee shall vote the shares as directed by the participant. The Trustee shall
not vote shares for which it has received no directions from the participant.
During the participant record keeping reconciliation ("transition") period, the
Sponsor shall have the right to direct the Trustee as to the manner in which the
Trustee is to vote the shares of the Mutual Funds in the Trust. With respect to
all rights other than the right to vote, the Trustee shall follow the directions
of the participant and if no such directions are received, the directions of the
Sponsor. The Trustee shall have no duty to solicit directions from the
participants or the Sponsor.
(c) Trustee Powers.
The Trustee shall have the following powers and authority:
(i) Subject to paragraphs (b), (c) and (d) of this Section 4, to sell,
exchange, convey, transfer, or otherwise dispose of any property held in the
Trust, by private contract or at public auction. No person dealing with the
Trustee shall be bound to see to the application of the purchase money or other
property delivered to the Trustee or to inquire into the validity, expediency,
or propriety of any such sale or other disposition.
(ii) To cause any securities or other property held as part of the
Trust to be registered in the Trustee's own name, in the name of one or more of
its nominees, or in the Trustee's account with the Depository Trust Company of
New York and to hold any investments in bearer form, but the books and records
of the Trustee shall at all times show that all such investments are part of the
Trust.
(iii) To keep that portion of the Trust in cash or cash balances as the
Sponsor or Administrator may, from time to time, deem to be in the best interest
of the Trust...
(iv) To make, execute, acknowledge, and deliver any and all documents
of transfer or conveyance and to carry out the powers herein granted.
(v) To settle, compromise, or submit to arbitration any claims, debts,
or damages due to or arising from the Trust; to commence or defend suits or
legal or administrative proceedings; to represent the Trust in all suits and
legal and administrative hearings; and to pay all reasonable expenses arising
from any such action, from the Trust if not paid by the Sponsor.
(vi) To employ legal, accounting, clerical, and other assistance as may
be required in carrying out the provisions of this Agreement and to pay their
reasonable expenses and compensation from the Trust if not paid by the Sponsor.
(vii) To do all other acts although not specifically mentioned herein,
as the Trustee may deem necessary to carry out any of the foregoing powers and
the purposes of the Trust.
Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, 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.
SECTION 5.
5. Record keeping and Administrative Service to be Performed
(a) General
The Trustee shall perform those record keeping and administrative functions
described in the CORPORATEplan for Retirement Select Agreement between the
Trustee and the Sponsor ("Service Agreement").
(b) Accounts
The Trustee shall keep accurate accounts of all investments, receipts,
disbursements, and other transactions hereunder and shall report the value of
the assets held in the Trust as of the last day of each fiscal quarter of the
Plan and, if not on the last day of a fiscal quarter, the date on which the
Trustee resigns or is removed as proved in Section 8 of this agreement or is
terminated as provided in Section 10 (the "Reporting Date"). Within thirty (30)
days following reach Reporting Date or within sixty (60) days in the case of a
Reporting date caused by the resignation or removal of the Trustee, or the
termination of this Agreement, the Trustee shall file with the Administrator a
written account setting forth all investments, receipts, disbursements, and
other transactions effected by the Trustee between the Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting date. Except as otherwise required under applicable law, upon the
expiration of six (6) months from the date of filing such account with the
Administrator, the Trustee shall have no liability or further accountability to
anyone with respect to the propriety of its acts or transactions shown in such
account, except with respect to such acts or transactions as to which the
Sponsor shall within such six (6) months period file with the Trustee written
objections.
(c) Inspection and Audit
All records generated by the Trustee in accordance with paragraph (a) and (b)
shall be open to inspection and audit, during the Trustee's regular business
hours prior to the termination of this Agreement, by the Administrator or any
person designated by the Administrator. Upon the resignation or removal of the
Trustee or the termination of this Agreement, the Trustee shall provide to the
Administrator, at no expense to the Sponsor, in the format regularly provided to
the Administrator, a statement of each participant's accounts as of the
resignation, removal, or termination, and the Trustee shall provide to the
Administrator or the Plan's new record keeper such further record as are
reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment
The Trustee's provision of the record keeping and administrative services set
forth in this Section 5 shall be conditioned on the Sponsor delivering to the
Trustee a copy of any amendment to the Plan as soon as administratively feasible
following the amendment's adoption, and on the Administrator providing the
Trustee on a timely basis with all the information the Administrator deems
necessary for the Trustee to perform the record keeping and administrative
services and such other information as the Trustee may reasonably request.
(e) Return, Reports and Information
The Administrator shall be responsible for the preparation and filing of all
returns, reports, and information required of the Trust or Plan by law including
but not limited to any annual fiduciary tax return. The Trustee shall provide
the administrator with such
information as the Administrator may reasonably request to make these filings.
The Administrator shall also be responsible for making any disclosures to
participants required by law.
SECTION 6.
6. Compensation and Expenses
As consideration for its services, the Trustee shall be entitled to the fees
computed and billed in accordance with the Service Agreement. All expenses of
the Trustee relating directly to the acquisition and disposition of investments
constituting part of the Trust, and all taxes of any kind whatsoever that may be
levied or assessed under existing or future laws upon or in respect of the Trust
or the income thereof, shall be charge against and paid from the appropriate
Plan participants' account.
SECTION 7.
7. Directions and Indemnification
(a) Identity of Administrator
The Trustee shall be fully protected in relying on the fact that the
Administrator under the Plan is the individual or persons named as such above or
such other individuals or persons as the Sponsor may notify the Trustee in
writing.
(b) Directions from Administrator
Whenever the administrator provides a direction to the Trustee, the Trustee
shall not be liable for any loss, or by reason of any breach, arising form the
direction if the direction is contained in a writing (or is oral and immediately
confirmed in written) signed by any individual whose name and signature have
been submitted (and not withdrawn) in writing to the Trustee in the Service
Agreement provided the Trustee reasonably believes the signature of the
individual to be genuine. Such direction may be made via EDT in accordance with
procedures agreed by the administrator and the Trustee; provided, however, that
the Trustee shall be fully protected in relying on such direction as if it were
a direction made in writing by the Administrator. The Trustee shall have no
responsibility to ascertain any direction's (i) accuracy, (ii) compliance with
the terms of the Plan or any applicable law, or (iii) effect for tax purpose or
otherwise.
(c) Directions from Sponsor
The Trustee shall not be liable for any loss, which arises, from the Sponsor's
exercise or non-exercise of right under Section 4 over the assets in a
participant's account.
(d) Indemnification
The Sponsor shall indemnify the Trustee against, and hold the Trustee harmless
from, any and all loss, damage, penalty, liability, cost, and expense, including
without limitation, reasonable attorney's fees and disbursement, that may be
incurred by, imposed upon, or asserted against the Trustee by reason of any
claim, regulatory
proceeding or litigation arising from any act done or omitted to be done by any
individual or person with respect to the Plan or Trust, excepting only any and
all loss, etc, arising solely from the Trustee's negligence or bad faith.
(e) Survival
The provisions of this Section 7 shall survive the termination of this
Agreement.
SECTION 8.
8. Resignation or Removal if Trustee
(a) Resignation
The Trustee may resign at any time upon sixty (60) days notice in writing to
Sponsor, unless a shorter period of notice is agreed upon by Sponsor.
(b) Removal
The Sponsor may remove the Trustee at any time upon sixty (60) days' notice in
writing to the Trustee, unless a shorter period of notice is agreed upon by the
Trustee.
SECTION 9.
9. Successor Trustee
(a) Appointment
If the office of Trustee becomes vacant for any reason, the Sponsor may in
writing appoint a successor trustee under this Agreement. The successor trustee
shall have all of the rights, powers, privileges, obligations, duties,
liabilities, and immunities granted to the Trustee under this Agreement. The
successor trustee and predecessor trustee shall not be liable for the acts or
omissions of the other with respect to the Trust.
(b) Acceptance
When the successor trustee accepts its appointment under this agreement, title
to and possession of the Trust assets shall immediately vest in the successor
trustee without any further action on the part of the predecessor trustee. The
predecessor trustee shall execute all instruments and do all acts that
reasonably may be necessary or reasonably may be requested in writing by the
Sponsor or the successor trustee to vest to all Trust assets in the successor
trustee or to deliver all Trust assets to the successor trustee.
(c) Corporate Action
Any successor of the Trustee or successor trustee, through sale or transfer of
the business or trust department of the Trustee or successor trustee, or through
reorganization, consolidation, or merger, or any similar transaction, shall,
upon consummation of the transaction, become the successor trustee under the
Agreement.
SECTION 10.
10. Termination
This Agreement may be terminated at any time by the Sponsor upon sixty (60)
days' notice in writing to the Trustee. On the date of the termination of this
Agreement, the Trustee shall forthwith transfer and deliver to such individual
or entity, as the Sponsor shall designate, all cash and assets then constituting
the Trust. If, by the termination date, the Sponsor has not notified the Trustee
in writing as to whom the assets and cash are to be transferred and delivered,
the Trustee may bring an appropriate action or proceeding for leave to deposit
the assets and cash in a court of competent jurisdiction. The Trustee shall be
reimbursed by the Sponsor for all costs and expenses of the action or proceeding
including, without limitation, reasonable attorneys' fees and disbursements.
SECTION 11.
11. Resignation, Removal, and Termination Notices
All notices of resignation, removal, or termination under this Agreement must be
in writing and mailed to the party to which the notice is being certified or
registered mail, return receipt requested, to the Sponsor at the address
designated in the Service Agreement, and to the Trustee at the afore-mentioned
address or to such other addresses as the parties have notified each other of in
the foregoing manner.
SECTION 12.
12. Duration
This Trust shall continue in effect without limit as to time, subject, however,
to the provisions of this Agreement relating to amendment, modification, and
termination thereof.
SECTION 13.
13. Insolvency of Sponsor
(a) Trustee shall cease disbursement of funds for payment of benefits
to Plan participants and their beneficiaries if the Sponsor is Insolvent.
Sponsor shall be considered "Insolvent" for purpose of this Agreement if
(i) Sponsor is unable to pay its debts as they become due or (ii) Sponsor
is subject to a pending proceeding as debtor under the United States
Bankruptcy Code.
(b) All times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of the
Sponsor under federal and state Law as set forth below.
(i) The Board of Directors and the Chief executive Officer of
the Sponsor shall have the duty to inform Trustee in writing of
Sponsor's Insolvency. If a person claming to be a creditor of the
Sponsor alleges in writing to trustee that Sponsor has become
Insolvent, Trustee shall determine whether Sponsor is
Insolvent and pending such determination, Trustee shall discontinue
disbursements for payment of benefits to Plan participants or their
beneficiaries.
(ii) Unless Trustee has actual knowledge of Sponsor's
Insolvency, or has received notice from Sponsor or a person claming to
be a creditor alleging that Company is Insolvent, Trustee shall have no
duty to inquire whether Sponsor is Insolvent. Trustee may in all events
rely on such evidence concerning Sponsor's solvency as may be furnished
to Trustee and that provides Trustee with a reasonable basis for making
a determination concerning Sponsor's solvency.
(iii) If any time Trustee has determined that Sponsor is
Insolvent, Trustee shall discontinue disbursement for payment to Plan
participants or their beneficiaries and shall hold the assets of the
Trust for the benefit of Sponsor's general creditors. Nothing in this
Trust agreement shall in any way diminish any rights of Plan
participants or their beneficiaries to pursue their rights as general
creditors of Sponsor with respect to benefits due under the Plan or
otherwise.
(iv) Trustee shall resume disbursement for the payment of
benefits to Plan participants or their beneficiaries in accordance with
Section 2 of this Trust Agreement only after Trustee has determined
that Sponsor is not Insolvent (or is no longer Insolvent),
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits form the Trust pursuant to (a) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Plan participants or their beneficiaries under the terms of the Plan for
the period of such discontinuance, less the aggregate amount of any payment
made to Plan participants or their beneficiaries by Sponsor in lieu of the
payments provided for hereunder during any such period of discontinuance.
SECTION 14.
14. Amendment of Modification
This Agreement may be amended or modified at any time and from time to time only
by an instrument executed by both the Sponsor and the Trustee.
SECTION 15.
15. General
(a) Performance by Trustee, its Agents or Affiliates
The Sponsor acknowledge and authorizes that the services to be provided under
this Agreement shall be provided by the Trustee, its agents or affiliates,
including Fidelity Investments Institutional Operations Company or its
successor, and that certain of such services may be provided pursuant to one or
more other contractual agreements or relationships.
(b) Entire Agreement
This Agreement contains all of the terms agreed upon between the parties with
respect to the subject matter hereof.
(c) Waiver
No waiver by either party of any failure or refuse all to comply with an
obligation hereunder shall be deemed a waiver of any other or subsequent failure
or refusal to so comply.
(d) Successors and Assigns
The stipulations in this Agreement shall inure to the benefit of, and shall
bind, the successors and assign of the respective parties.
(e) Partial Invalidity
If any term or provision of this Agreement or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Agreement or application of such term or provision to persons
or circumstances other than as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
(f) Section Heading
The heading of the various section and subsections of this Agreement have been
inserted only for the purpose of convenience and are not part of this Agreement
and shall not be deemed in any manner to modify, explain, expand or restrict any
of the provision of this Agreement.
SECTION 16.
16. Governing Law
(a) Massachusetts Law Controls
This Agreement is being made in the Commonwealth of Massachusetts and the Trust
shall be administered as a Massachusetts trust. The validity, construction,
effect and administration of this Agreement shall be governed by and interpreted
in accordance with the laws of the Commonwealth of Massachusetts, except to the
extent those laws are superseded under Section 514 of ERISA.
(b) Trust Agreement Controls
The Trustee is not a party to the Plan, and in the event of any conflict between
the provisions of the Plan and the provisions of this Agreement, the provision
of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
[SPONSOR]
Attest: By
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[Title] Assistant Secretary [Title] Vice President
FIDELITY MANAGEMENT TRUST COMPANY
[TRUSTEE]
By
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[Title]