Exhibit 10(ii)
FIRST AMENDMENT TO THE
INFORMATION RESOURCES, INC.
AMENDED AND RESTATED 401(K) RETIREMENT SAVINGS PLAN
The Information Resources, Inc. Amended and Restated 401(k) Retirement
Savings Plan is hereby amended, effective July 1, 1996, as follows:
1. Section 4.2(b) (Salary Reduction Agreement) shall be
amended to read as follows:
Salary Reduction Agreements, or any changes thereto, shall be effective
as of the first day of any calendar year month, provided the
Participant submits an appropriate executed authorization and notice to
the Company prior to such calendar year month, on a form or in the
manner prescribed by the Plan Administrator. The Plan Administrator
may establish additional rules regarding the timing and frequency of a
change in the amount of salary reductions, provided such policy is
applied uniformly to all Participants.
2. Section 4.7 of the Plan (Withdrawals) shall be amended
to read as follows:
A Participant may elect in writing (or in such other form as may be
permitted from time to time by the Plan Administrator) to withdraw any
amount (but not less than $500) from his 401(k) Account or Rollover
Contribution Account at any time subject to the following conditions:
(a) The distribution of a Participant's 401(k) Account or Rollover
Contribution Account shall not commence prior to his death,
Disability, attainment of age 59-1/2, or termination of
employment, except upon his demonstration of financial
hardship. A distribution based upon financial hardship may be
made only if the Participant has an immediate and heavy
financial need, and cannot exceed the amount required to
satisfy such financial need, which may not be satisfied from
other resources reasonably available to the Participant. A
Participant shall be deemed to have an immediate and heavy
financial need if the distribution is on account of:
(1) Medical expenses described in Code Section 213(d)
incurred by the Participant, the Participant's spouse
or any of the Participant's dependents (as defined in
Code Section 152);
(2) The purchase (excluding mortgage payments) of a
principal residence of the Participant;
(3) Payment of tuition and related educational fees for
the next twelve (12) months of post- secondary
education for the Participant, his spouse, children or
dependents;
(4) The need to prevent the eviction of the Participant
from his principal residence or foreclosure on the
mortgage of the Participant's principal residence; or
(5) Any other emergency that the Plan Administrator,
pursuant to a uniform and nondiscriminatory policy and
in accordance with guidelines issued by the Internal
Revenue Service, deems a bona fide financial
emergency.
(b) A distribution shall be considered necessary to satisfy an
immediate and heavy financial need if:
(1) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant;
(2) The Participant has obtained all distributions, other
than hardship distributions, and all nontaxable loans
currently available under all plans maintained by the
Company; and
(3) The Participant does not make elective deferrals or
employee contributions under any plan maintained by
the Company for a twelve (12) month period following
the date of receipt of the hardship distribution, nor
does he make elective deferrals under any plan
maintained by the Company for the taxable year
immediately following the taxable year of the hardship
distribution in excess of the limitation imposed by
Section 402(g) of the Code for such next taxable year,
less the amount of such Participant's elective
deferrals for the taxable year of the hardship
distribution.
(c) The Participant must request a hardship withdrawal in writing
on a form provided by the Plan Administrator, or in such other
form or manner as the Plan Administrator may from time to time
determine. The Plan Administrator shall specify any supporting
data required and shall follow a uniform, nondiscriminatory
policy in determining the eligibility for, and timing of,
hardship withdrawals.
(d) A Participant shall be entitled to a hardship withdrawal
pursuant to this Section 4.7 from that portion of his 401(k)
Account that represents his 401(k) Contributions, but not on
that portion that represents any earnings credited on such
account.
-2-
3. Section 7.2 of the Plan shall be amended to add the
following Paragraph (d):
(d) Effective July 1, 1996, for purposes of determining a
Participant's vested interest in accordance with this Paragraph
7.2, the Plan shall apply the "elapsed time" method of
crediting Vesting Service, based upon the Participant's date of
hire and as such method is described in Department of Labor
Regulations Section 2530.200b-9. In accordance therewith, all
Participants shall thereupon receive vested credit in a manner
that is consistent with Paragraph (f) of Department of Labor
Regulations Section 2530.200b-9; provided that, a Participant
shall be credited with no fewer years of Vesting Service as of
July 1, 1996 than he had been credited with under the Plan as
of June 30, 1996.
4. Article IX (Investment Discretion) shall be amended to read as
follows:
ARTICLE IX - INVESTMENT DISCRETION
----------------------------------
9.1 DIRECTED INVESTMENT ACCOUNTS
(a) The Company may establish separate investment funds in
which the assets of the Trust will be held. Upon such
establishment, the Trustee shall, if the Plan
Administrator so directs, and in accordance with the
Trust Agreement, permit the Participants to direct the
Trustee as to the investment of all or a portion of
their Accrued Benefit. If such authorization is given
by the Plan Administrator, Participants may, subject
to a procedure established and applied in a uniform
and nondiscri- minatory manner, direct the Trustee to
invest their Accrued Benefit in a specific investment
fund or funds. To the extent so directed, and as
permitted by law, the Trustee and the Plan
Administrator shall be relieved of their fiduciary
responsibilities under Section 404 of ERISA. That
portion of the accounts of any Participant so directed
will thereupon be considered a "Directed Investment
Account," which shall not share in Trust Fund earnings
nor be taken into consideration for purposes of
Section 6.1. In lieu thereof, the Trustee shall,
following the end of each Valuation Date, value all
assets of the Trust Fund, allocate net gains or
losses, and process additions to and withdrawals from
Participants' accounts in the following manner:
(1) The Trustee shall first compute the fair
market value of securities and/or the other
assets comprising each investment fund. Each
account shall be adjusted each business day by
applying the closing market price of the
investment fund on the current business day to
-3-
the share/unit balance of the investment fund
as of the close of business on the current
business day.
(2) The Trustee then shall account for any
requests of additions or withdrawals made to
or from a specific designated investment fund
by any Participant, including allocations of
contributions. In completing the valuation
procedure described above, such adjustments in
the amounts credited to such accounts shall be
made on the business day to which the
investment activity relates. Contributions
received by the Trustee pursuant to the Plan
shall not be taken into account until the
Valuation Date coinciding with or next
following the date such contribution was both
actually paid to the Trustee and allocated
among the accounts of the Participants.
(3) Notwithstanding paragraphs 1 and 2 above, if a
pooled investment fund is created as a
designated fund for Participants, valuation of
the pooled investment fund and allocation of
earnings of the pooled investment fund shall
be governed by any agreement of such pooled
investment fund. The provisions of any
agreement shall be incorporated by reference
in this Section 9.1.
It is intended that this Section 9.1 operate to
distribute among each Participant all income of the
Trust Fund and changes in the value of the assets of
the Trust Fund.
(b) A separate Directed Investment Account shall be
established for each Participant who has directed an
investment. Transfers between a Participant's regular
account, if any, and his Directed Investment Account
shall be charged and credited as the case may be to
each account.
(c) All investments, including that of any common stock,
shall be held in the name of the Trustee or one or
more of its nominees as provided in the Trust
Agreement.
(d) Each Participant shall file an investment election
with, and on a form or in the manner provided by, the
Plan Administrator at the time he becomes a
Participant in the Plan. A Participant may change his
investment fund elections regarding existing accounts
and future contributions pursuant to procedures
established by the Plan Administrator, which may
include daily trading via the Trustee's telephonic
toll-free system. A Participant also may transfer
amounts attributable to prior contributions among the
investment funds pursuant to such procedures. All
investments and changes must be
-4-
made in multiples of one percent (1%), or, for
purposes of transfers only, in multiples of one dollar
($1.00) (with minimum transfers to be equal to the
lesser of $250 or 100% of a fund account). Elections
shall become effective as soon as practicable after
receipt by the Plan Administrator, subject to such
limitations and restrictions as the Plan Administrator
may, from time to time, establish.
(e) If no election form has been executed by the
Participant for his Directed Investment Account, his
entire Accrued Benefit shall be invested by the
Trustee pursuant to the Trust Agreement.
5. Article XIII of the Plan (Trust Provisions) shall be deleted in
its entirety, and all corresponding references in the Plan to Article
XIII shall be similarly deleted, and the Information Resources, Inc.
401(k) Retirement Savings Plan Trust Agreement, which is attached
hereto, shall be established as a separate Trust Agreement by and
between Fidelity Management Trust Company and Information Resources,
Inc.
6. Article XV (Loans to Participants) shall be amended to
read as follows:
15.1 LOANS TO PARTICIPANTS
Upon application by an Employee who is a Participant or any
other party-in-interest, as defined in Section 3(14) of ERISA,
the Trustee may lend such Employee or other party-in- interest
an amount such that the aggregate of all of his outstanding
loans under this Plan and all other plans maintained by the
Company does not exceed the lesser of: (1) fifty thousand
dollars ($50,000) (reduced by the excess, if any, of (A) the
highest outstanding balance of loans from the Plan and all
other plans maintained by the Company during the one (1) year
period ending on the day before the date on which such loan is
made over (B) the outstanding balance of loans from the Plan
and all other plans maintained by the Company on the date on
which such loan is made); or (2) an amount which does not
exceed one-half (1/2) of the vested interest of his Accrued
Benefit, if any, under the Plan as of the date on which the
loan is approved. All loans shall follow a uniform,
nondiscriminatory policy. Loans shall not be made available to
Highly Compensated Employees in an amount greater than the
amount made available to other Employees.
-5-
In addition to such rules and regulations as the Plan
Administrator may adopt, all loans shall comply with the
following terms and conditions:
(a) An application for a loan by an Employee or other
party-in-interest shall be made in writing to the Plan
Administrator, whose action thereon shall be final.
The Plan Administrator shall specify the form of the
application and any supporting data required.
(b) The period of repayment for any loan shall be five (5)
years, unless the loan is used to acquire a dwelling
unit which within a reasonable time shall be used as
the principal residence of the Employee or other
party-in-interest, in which case the period of
repayment shall be determined by the Plan
Administrator but shall not be greater than twenty
(20) years. Loans shall be repayable in
substantially equal amortized installments of both
principal and interest payable not less frequently
than quarterly. Loans to Employees shall be repaid
through automatic payroll deduction, and for
parties-in-interest who are not Employees, on such
other terms and conditions as the Plan Administrator
deems appropriate. To the extent that such loan is
unpaid at the time a distribution of such
Participant's Accrued Benefit becomes payable, such
unpaid amount shall be deducted from the amount
otherwise payable from his Accrued Benefit. Any loan
described in this Section 15.1 shall be considered an
investment of the account from which it was borrowed.
Such account shall not share in the allocation of
earnings under the Plan to the extent of such loan.
(c) Each loan shall bear interest at a rate which is the
rate being charged by the area banking businesses for
similar well-secured loans.
(d) Each loan shall be supported by collateral equal to no
more than fifty percent (50%) of the Employee's or
other party-in-interest's entire vested interest in
the Trust. A loan also shall be supported by the
Employee's or other party-in-interest's promissory
note for the amount of the loan, including interest,
payable to the order of the Trustee. The promissory
note shall require that the unpaid principal and
interest will become due and payable if a loan payment
is not made by the last day of the calendar year
quarter following the calendar year quarter in which
the installment was due and owing. In the event of
default, foreclosure on the note and attachment of
security will not occur until a distributable event
occurs in the Plan.
(e) Each loan shall be in an amount not less than one
thousand dollars ($1,000.00) and shall be made in
increments of not less than ten dollars ($10.00). No
more than one (1) loan may be outstanding at any one
time.
-6-
(f) Each loan shall be for a period of not less than six
(6) months.
IN WITNESS WHEREOF, Information Resources, Inc. has caused this
Amendment to be executed by its officer hereto duly authorized this ____ day of
May, 1996.
INFORMATION RESOURCES, INC.,
a Delaware corporation
By:______________________________
Its:_____________________________
-7-
