EXHIBIT 10.3
EMPLOYEE BENEFITS AGREEMENT
between
EQUIFAX INC.
and
EQUIFAX PS, INC.
Dated as of _______, 2001
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND REFERENCES.................................... 2
1.01 Definitions................................................... 2
(a) Action........................................................ 2
(b) Agreement..................................................... 2
(c) ASO Contract.................................................. 2
(d) Award......................................................... 2
(e) Bulk Asset Transfer........................................... 2
(f) Close of the Distribution Date................................ 2
(g) Code.......................................................... 2
(h) Compensation Committee........................................ 2
(i) Conversion Formula............................................ 3
(j) Deferral Programs............................................. 3
(k) Distribution.................................................. 3
(l) Distribution Agreement........................................ 3
(m) Distribution Date............................................. 3
(n) ERISA......................................................... 3
(o) Equifax Executive............................................. 3
(p) Equifax Group................................................. 3
(q) Executive Life Plan........................................... 3
(r) Executive Life Trust.......................................... 4
(s) Executive Programs............................................ 4
(t) Foreign Plan.................................................. 4
(u) Governmental Authority........................................ 4
(v) Group Insurance Policy........................................ 4
(w) Health and Welfare Plans...................................... 4
(x) HMO........................................................... 5
(y) HMO Agreements................................................ 5
(z) Immediately after the Distribution Date....................... 5
(aa) Individual Agreement.......................................... 5
(bb) Initial Asset Transfer........................................ 5
(cc) Liabilities................................................... 5
(dd) Long-Term Incentive Plan...................................... 5
(ee) Material Feature.............................................. 6
(ff) Participating Company......................................... 6
(gg) PSI Business.................................................. 6
(hh) PSI Common Stock.............................................. 6
(ii) PSI Group..................................................... 6
(jj) Pension Plan.................................................. 6
(kk) Pension Plan Spinoff Date..................................... 6
(ll) Pension Trust................................................. 6
(mm) Person........................................................ 7
(nn) Plan.......................................................... 7
(oo) Plan Termination Liability.................................... 7
(pp) Reimbursement Plans........................................... 7
(qq) Savings Plan.................................................. 7
(rr) Short-Term Incentive Plan..................................... 7
(ss) Stock Incentive Plan.......................................... 7
(tt) Subsequent Asset Transfer..................................... 8
(uu) Subsidiary.................................................... 8
(vv) Transferred Individual........................................ 8
(ww) Transition Support Agreement.................................. 10
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(xx) VEBA.......................................................... 10
1.02 References........................................................... 10
ARTICLE II GENERAL PRINCIPLES.............................................. 11
2.01 Assumption of Liabilities............................................ 11
2.02 PSI Group Participation in Equifax Plans............................. 11
(a) Participation in Equifax Plans................................ 11
(b) Equifax's General Obligations as Plan Sponsor................. 11
(c) PSI's General Obligations as Participating Company............ 12
(d) Termination of Participating Company Status................... 12
2.03 Establishment of The PSI Plans....................................... 12
2.04 Terms of Participation by Transferred Individuals.................... 12
ARTICLE III DEFINED BENEFIT PLANS......................................... 14
3.01 Establishment of Mirror Pension Trusts............................... 14
3.02 Assumption of Pension Plan and Liabilities and Allocation
of Interests in the Equifax Pension Trust............................ 14
(a) Assumption of Liabilities by PSI Pension Plan................. 14
(b) Asset Allocations and Transfers............................... 14
(c) Valuation of Venture Capital Assets........................... 16
(d) Pension Plan Transition Period................................ 16
(e) Negotiation in Event of No Pension Plan Spinoff Date.......... 16
3.03 Governmental Compliance....................................... 17
ARTICLE IV DEFINED CONTRIBUTION PLANS.................................... 18
4.01 Savings Plan.................................................. 18
(a) Savings Plan Trust............................................ 18
(b) Savings Plan Participation.................................... 18
(c) Assumption of Liabilities and Transfer of Assets.............. 18
(d) Specific Stock Funds in the Equifax and PSI Savings Plan...... 19
(e) Miscellaneous Funds........................................... 19
ARTICLE V HEALTH AND WELFARE PLANS...................................... 21
5.01 Assumption of Health and Welfare Plan Liabilities.................... 21
5.02 Establishment of PSI VEBA............................................ 22
5.03 VEBA Asset Transfers................................................. 22
5.04 Contributions to, Investments of, and Distributions from VEBAs....... 22
5.05 Vendor Contracts..................................................... 23
(a) ASO Contracts, Group Insurance Policies, HMO Agreements, and
Letters of Understanding...................................... 23
(b) Payment and Effect of Change in Rates......................... 23
5.06 Equifax Short-Term Disability Plan................................... 24
5.07 Retiree Health and Life Insurance Benefits........................... 24
(a) Establishment of PSI Plan..................................... 24
(b) Equifax Retiree Health and Life Benefits...................... 24
5.08 COBRA and HIPAA...................................................... 25
5.09 Leave of Absence Programs............................................ 25
5.10 Post-Distribution Transitional Arrangements......................... 25
(a) Continuance of Elections, Co-Payments, and Maximum Benefits... 25
(b) Administration................................................ 26
(c) Equifax Reimbursement Plans................................... 26
5.11 Severance Pay Plan................................................... 27
(a) Transferred Individuals....................................... 27
(b) Additional Liability Assumed by PSI........................... 27
5.12 Application of Article V to the PSI Group............................ 27
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ARTICLE VI EXECUTIVE PROGRAMS............................................ 29
6.01 Assumption of Obligations............................................ 29
6.02 Short-Term Incentive Awards.......................................... 29
6.03 Long-Term Incentive Plan............................................. 29
(a) Plan 19 (1999-2001).......................................... 29
(b) 2001 Awards................................................... 30
6.04 Stock Incentive Plan................................................. 30
(a) Stock Options................................................. 30
(b) Transferred Individuals Who are Not Active Employees of PSI... 31
6.05 Deferred Compensation Plan.................................... 31
6.06 Executive Life and Supplemental Retirement Benefit Plan....... 31
(a) Plan Agreements............................................... 31
(b) Executive Life Trust.......................................... 31
6.07 Global Stock Purchase Plan Loan Program....................... 32
6.08 Change In Control Agreements.................................. 32
6.09 Restricted Stock.............................................. 32
6.10 Waiver of Dividend Relating to Certain Trusts................. 32
ARTICLE VII GENERAL....................................................... 33
7.01 Payment of and Accounting Treatment for Expenses and Balance
Sheet Amounts........................................................ 33
(a) Expenses...................................................... 33
(b) Balance Sheet Amounts......................................... 33
7.02 Sharing of Participant Information................................... 33
7.03 Restrictions on Extension of Option Exercise Periods, Amendment
or Modification of Option Terms...................................... 33
7.04 Non-Solicitation of Employees/Others................................. 34
7.05 Reporting and Disclosure and Communications to Participants.......... 34
7.06 Plan Audits.......................................................... 34
(a) Audit Rights with Respect to the Allocation or Transfer of
Plan Assets................................................... 34
(b) Audit Rights With Respect to Information Provided............. 35
(c) Audits Regarding Vendor Contracts............................. 35
(d) Audit Assistance.............................................. 36
7.07 Beneficiary Designations/Release of Information/Right to
Reimbursement........................................................ 36
7.08 Requests for Internal Revenue Service Rulings and United States
Department of Labor Opinions and Satisfaction of Obligations
Arising From Voluntary Compliance Programs........................... 36
(a) Cooperation................................................... 36
(b) Applications.................................................. 36
7.09 Fiduciary and Related Matters........................................ 37
7.10 No Third-Party Beneficiaries; Non-Termination of Employment.......... 37
7.11 Collective Bargaining................................................ 37
7.12 Consent of Third Parties............................................. 38
7.13 Foreign Plans........................................................ 38
7.14 Effect If Distribution Does Not Occur............................... 38
7.15 Relationship of Parties.............................................. 38
7.16 Affiliates........................................................... 38
7.17 Dispute Resolution................................................... 38
7.18 Indemnification...................................................... 38
7.19 W-2 Matters.......................................................... 40
7.20 Confidentiality...................................................... 40
7.21 Notices.............................................................. 41
7.22 Interpretation....................................................... 41
7.23 Governing Law/Execution.............................................. 41
Appendix A EQUIFAX EXECUTIVE PROGRAMS.................................... 43
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Appendix B PSI HEALTH AND WELFARE PLANS.................................. 44
Appendix C FOREIGN PLANS................................................. 45
Appendix D CHANGE IN CONTROL AGREEMENTS.................................. 48
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EMPLOYEE BENEFITS AGREEMENT
THIS EMPLOYEE BENEFITS AGREEMENT, dated as of _______, 2001, is by and
between Equifax Inc., a Georgia corporation ("Equifax" or the "Corporation"),
and Equifax PS, Inc., a Georgia corporation ("PSI").
WHEREAS, Equifax's Board of Directors has determined that separation from
the Corporation of substantially all of the Corporation's payment services
assets and businesses and public ownership of such assets and businesses is in
the best interests of Equifax and its shareholders; and
WHEREAS, Equifax is consolidating the assets and operations of
substantially all of the payment services businesses owned by it and its
Subsidiaries into PSI and its Subsidiaries; and
WHEREAS, Equifax intends to accomplish the separation of PSI through a
distribution of the stock of PSI to the shareholders of Equifax that is intended
to be tax free pursuant to section 355 of the Internal Revenue Code of 1986, as
amended (the "Distribution"); and
WHEREAS, Equifax and PSI have entered into a Distribution Agreement and
Plan of Reorganization and Distribution, dated as of ______________, 2001 (the
"Distribution Agreement"), and several other agreements that will govern certain
matters relating to the Distribution and the relationship of Equifax and PSI and
their respective Subsidiaries following the Distribution; and
WHEREAS, pursuant to the Distribution Agreement, Equifax and PSI have
agreed to enter into this Agreement for the purpose of allocating assets,
liabilities, and responsibilities with respect to certain employee compensation
and benefit plans and programs between them.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and in the Distribution Agreement, the parties agree as follows:
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Article I Definitions and References
1.01 Definitions
For purposes of this Agreement, capitalized terms used (other than the
formal names of Equifax Plans (as defined below)) and not otherwise defined
shall have the respective meanings assigned to them below or as assigned to them
in the Distribution Agreement (as defined above):
(a) Action
"Action" means any demand, action, cause of action, suit, countersuit,
arbitration, inquiry, proceeding, or investigation by or before any Governmental
Authority or any arbitration or mediation tribunal, pending or threatened, known
or unknown.
(b) Agreement
"Agreement" means this Employee Benefits Agreement, including all the
attached Appendices.
(c) ASO Contract
"ASO Contract" means an administrative services contract, related prior
practice, or related understanding with a third-party administrator that
pertains to any Equifax Health and Welfare Plan or any PSI Health and Welfare
Plan.
(d) Award
"Award" means a long-term or short-term award under a Long-Term Incentive
Plan or a Short-Term Incentive Plan or, as the context or facts may require, any
other award under another incentive or special bonus, incentive, or award
program or arrangement.
(e) Bulk Asset Transfer
"Bulk Asset Transfer" is defined in Section 3.02(b)(2).
(f) Close of the Distribution Date
"Close of the Distribution Date" means 11:59:59 P.M., Eastern Time, on the
Distribution Date.
(g) Code
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor federal income tax law. Reference to a specific Code provision also
includes any proposed, temporary, or final regulation in force under that
provision.
(h) Compensation Committee
"Compensation Committee" means the Compensation and Human Resources
Committee of Equifax.
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(i) Conversion Formula
"Conversion Formula" means the appropriate formula which shall be applied
in adjusting the exercise price and award size of Equifax options under the
Equifax Stock Incentive Plans and in determining the exercise price and number
of PSI options under the PSI Stock Incentive Plans. The Conversion Formula
shall be based on the average of the high and low per share prices of Equifax
common stock and PSI Common Stock as traded on the New York Stock Exchange on
the day Immediately after the Distribution Date.
(j) Deferral Programs
"Deferral Programs," when immediately preceded by "Equifax" means the
Equifax Deferred Compensation Plan. When immediately preceded by "PSI,"
"Deferral Programs" means the executive deferred compensation plan to be
established or maintained by PSI pursuant to Section 2.03.
(k) Distribution
"Distribution" has the meaning given that term under the Distribution
Agreement.
(l) Distribution Agreement
"Distribution Agreement" is defined in the preamble of this Agreement.
(m) Distribution Date
"Distribution Date" has the meaning given that term under the Distribution
Agreement.
(n) ERISA
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended. Reference to a specific provision of ERISA also includes any proposed,
temporary, or final regulation in force under that provision.
(o) Equifax Executive
"Equifax Executive" means an employee or former employee of a member of the
Equifax Group or a member of the PSI Group who, as of the Close of the
Distribution Date, is or was eligible to participate in or receive a benefit
under any Equifax Executive Program.
(p) Equifax Group
"Equifax Group" has the meaning given that term under the Distribution
Agreement.
(q) Executive Life Plan
"Executive Life Plan," when immediately preceded by "Equifax," means the
Executive Life and Supplemental Retirement Benefit Plan maintained by the
Equifax Group or when immediately preceded by "PSI," means a plan to be
established or which is maintained pursuant to Section 2.03 by the PSI Group
that corresponds to the Equifax Executive Life Plan, including, in each case,
any and all agreements, documents, and policies relating to such Executive Life
Plan.
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(r) Executive Life Trust
"Executive Life Trust," when immediately preceded by "Equifax," means the
trust evidenced by the Equifax Grantor Trust Agreement, dated as of February 4,
2000, and currently associated with the Equifax Executive Life Plan. When
immediately preceded by "PSI," "Executive Life Trust" means the grantor trust to
be established or maintained by PSI pursuant to Section 6.05 that corresponds to
the Equifax Executive Life Trust.
(s) Executive Programs
"Executive Programs," when immediately preceded by "Equifax" means the
executive benefit and nonqualified plans, programs, and arrangements
established, maintained, agreed upon, or assumed by a member of the Equifax
Group for the benefit of employees and former employees of members of the
Equifax Group before the Close of the Distribution Date. When immediately
preceded by "PSI," "Executive Programs" means the executive benefit plans and
programs to be established or which are maintained by PSI pursuant to Section
2.03 that correspond to the respective Equifax Executive Programs, including
those plans and programs listed in Appendix A.
(t) Foreign Plan
"Foreign Plan," when immediately preceded by "Equifax," means a Plan
maintained by the Equifax Group or when immediately preceded by "PSI," a plan to
be established or which is maintained by the PSI Group, in either case for the
benefit of employees who are compensated under a payroll which is administered
outside the 50 United States, its territories and possessions, and the District
of Columbia, including those Plans described in Appendix C.
(u) Governmental Authority
"Governmental Authority" means any federal, state, local, foreign, or
international court, government, department, commission, board, bureau, agency,
official, or other regulatory, administrative, or governmental authority,
including the Department of Labor, the Securities and Exchange Commission, the
Internal Revenue Service, and the Pension Benefit Guaranty Corporation.
(v) Group Insurance Policy
"Group Insurance Policy" means a group insurance policy issued in
connection with any Equifax Health and Welfare Plan, or any PSI Health and
Welfare Plan, as applicable.
(w) Health and Welfare Plans
"Health and Welfare Plans," when immediately preceded by "Equifax" means
the health and welfare benefit plans, programs, and policies (including the
Reimbursement Plans) which are sponsored by Equifax. When immediately preceded
by "PSI," "Health and Welfare Plans" means the benefit plans, programs, and
policies (including the Reimbursement Plans) corresponding to those plans,
programs, and policies sponsored by Equifax as of the Distribution Date,
including those plans, programs, and policies listed in Appendix B to this
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Agreement which will be sponsored by a member of the PSI Group Immediately after
the Distribution Date.
(x) HMO
"HMO" means a health maintenance organization that provides benefits under
the Equifax Health and Welfare Plans or the PSI Health and Welfare Plans, as
applicable.
(y) HMO Agreements
"HMO Agreements" means contracts, letter agreements, practices, and
understandings with HMOs that provide medical, dental, or vision services under
the Equifax Health and Welfare Plans and the PSI Health and Welfare Plans, as
applicable.
(z) Immediately after the Distribution Date
"Immediately after the Distribution Date" means 12:00 A.M., Eastern Time,
on the day after the Distribution Date.
(aa) Individual Agreement
"Individual Agreement" means an individual contract or agreement (whether
written or unwritten) entered into between a member of the Equifax Group or a
member of the PSI Group and any employee or individual who will be an employee
of, or otherwise assigned to, the PSI Group Immediately after the Distribution
Date that establishes the right of such individual to special compensation or
benefits, special bonuses, supplemental pension benefits, hiring bonuses, loans,
guaranteed payments, special allowances, tax equalization payments, special
expatriate compensation payments, disability benefits, or other forms of
compensation and benefits, or that provides benefits similar to those identified
in Appendix A.
(bb) Initial Asset Transfer
"Initial Asset Transfer" is defined in Section 3.02(b)(2).
(cc) Liabilities
"Liabilities" means any and all losses, claims, charges, debts, premiums,
demands, actions, costs, and expenses (including any current or future benefit
payments or other entitlements, and administrative and related costs and
expenses of any Plan, program, service or consulting agreement, or
arrangement), of any nature whatsoever, whether absolute or contingent, matured
or unmatured, liquidated or unliquidated, accrued or unaccrued, known or
unknown, whether or not imposed or determined by a court, whenever arising.
(dd) Long-Term Incentive Plan
"Long-Term Incentive Plan," when immediately preceded by "Equifax" means
the Equifax Inc. Key Management Long-Term Incentive Plan, the Equifax Inc. 1988
Performance Share Plan for Officers, and any other long-term incentive plans
established or maintained by a member of the Equifax Group. When immediately
preceded by "PSI," "Long-Term Incentive
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Plan" means the long-term incentive plan to be established or assumed by PSI
pursuant to Section 2.03.
(ee) Material Feature
"Material Feature" means any feature of a Plan that could reasonably be
expected to be of material importance to the sponsoring employer or the
participants and beneficiaries of the Plan, which could include, depending on
the type and purpose of the particular Plan, the class or classes of employees
eligible to participate in such Plan, the nature, type, form, source, and level
of benefits provided by the employer under such Plan and the amount or level of
contributions, if any, required or permitted to be made by participants (or
their dependents or beneficiaries) to such Plan.
(ff) Participating Company
"Participating Company" means any Person (other than an individual) that is
participating in a Plan sponsored by a member of the Equifax Group or a member
of the PSI Group, as the context requires.
(gg) PSI Business
"PSI Business" has the meaning given that term under the Distribution
Agreement.
(hh) PSI Common Stock
"PSI Common Stock" has the meaning given that term under the Distribution
Agreement.
(ii) PSI Group
"PSI Group" has the meaning given that term under the Distribution
Agreement.
(jj) Pension Plan
"Pension Plan," when immediately preceded by "Equifax," means the Equifax
Inc. United States Retirement Income Plan. When immediately preceded by "PSI,"
"Pension Plan" means the plan to be established or maintained by PSI pursuant to
Section 2.03 that corresponds to the Equifax Pension Plan.
(kk) Pension Plan Spinoff Date
"Pension Plan Spinoff Date" shall have the meaning given that term under
Section 3.02(b)(1).
(ll) Pension Trust
"Pension Trust," when immediately preceded by "Equifax," means the trust
evidenced by the Equifax Trust Agreement, as amended from time to time, and
currently associated with the Equifax Pension Plan. When immediately preceded
by "PSI," "Pension Trust" means the trust to be established or maintained by PSI
pursuant to Section 3.01 that corresponds to the Equifax Pension Trust.
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(mm) Person
"Person" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a limited
liability entity, any other entity, or any Governmental Authority.
(nn) Plan
"Plan," when immediately preceded by "Equifax" or "PSI," means any plan,
policy, program, payroll practice, on-going arrangement, contract, trust,
insurance policy, or other agreement or funding vehicle, whether written or
unwritten, providing benefits to employees or former employees of the Equifax
Group or the PSI Group, as applicable.
(oo) Plan Termination Liability
"Plan Termination Liability" shall be calculated in accordance with Section
414(l) of the Code based on the assumptions used by the Pension Benefit Guaranty
Corporation as of the Pension Plan Spinoff Date.
(pp) Reimbursement Plans
"Reimbursement Plans," when immediately preceded by "Equifax," means the
Equifax Health Care Account Plan and the Equifax Dependent Care Account Plan, as
applicable. When immediately preceded by "PSI," "Reimbursement Plans" means the
health care flexible spending account plan and the dependent care flexible
spending account plan to be established or maintained by PSI pursuant to Section
2.03 that corresponds to the corresponding Equifax Reimbursement Plan.
(qq) Savings Plan
"Savings Plan," when immediately preceded by "Equifax," means the Equifax
Inc. 401(k) Retirement and Savings Plan. When immediately preceded by "PSI,"
"Savings Plan" means the PSI 401(k) plan to be established by PSI pursuant to
Section 2.03.
(rr) Short-Term Incentive Plan
"Short-Term Incentive Plan," when immediately preceded by "Equifax" means
any short-term compensation, bonus, or incentive compensation programs
established or maintained by the Equifax Group. When immediately preceded by
"PSI," "Short-Term Incentive Plan" means any short-term compensation, bonus, or
incentive compensation programs to be established or maintained by PSI pursuant
to Section 2.03.
(ss) Stock Incentive Plan
"Stock Incentive Plan," when immediately preceded by "Equifax," means the
Equifax Inc. 2000 Stock Incentive Plan, the Equifax Inc. Omnibus Stock Incentive
Plan, the 1995 Employee Stock Incentive Plan and the 1993 Employee Stock
Incentive Plan and any other stock-based incentive plan established or
maintained by a member of the Equifax Group. When immediately preceded by
"PSI," "Stock Incentive Plan" means the stock incentive plans to be established
or assumed by PSI pursuant to Section 2.03.
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(tt) Subsequent Asset Transfer
"Subsequent Asset Transfer" is defined in Section 3.02(b)(2).
(uu) Subsidiary
"Subsidiary" of any Person means any corporation or other organization,
whether incorporated or unincorporated, of which at least a majority of the
securities or interests having by the terms thereof ordinary voting power to
elect at least a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization is, directly or
indirectly, owned or controlled by such Person or by any one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries; provided,
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however, that no Person that is not directly or indirectly wholly owned by any
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other Person shall be a Subsidiary of such other Person unless such other Person
controls, or has the right, power, or ability to control, that Person.
(vv) Transferred Individual
"Transferred Individual" means any individual who, as of the Close of the
Distribution Date:
(1) is actively employed by, or on a leave of absence (including those
individuals receiving short-term disability benefits and those taking leave
pursuant to the Family and Medical Leave Act of 1993, as amended) from, a member
of the PSI Group or the PSI Business (or is deemed to be so employed or on leave
in accordance with an agreement between Equifax and PSI); or
(2) is not actively employed by, nor on a leave of absence from, Equifax or
a member of the PSI Group or the PSI Business, and:
(A) whose most recent (through the Close of the Distribution Date)
active employment with Equifax or a past or present affiliate of Equifax
was with an entity or a corporate division of the PSI Business, and the
predecessors of any such entities; or
(B) who otherwise is identified pursuant to a methodology approved by
Equifax and PSI, which methodology shall be consistent with the intent of
the parties that former employees of Equifax or a past or present affiliate
of Equifax and such other individuals who performed services for Equifax
(including non-employees) will be aligned with the entity for which they
most recently (through the Close of the Distribution Date) were employed or
otherwise provided services.
Notwithstanding the prior sentence, the term "Transferred Individual" shall
not include any individual who is otherwise designated in (2) above and who as
of the Close of the Distribution Date (i) is receiving payments from the Equifax
Pension Plan, (ii) has retiree health coverage from Equifax in effect or (iii)
is receiving benefits under the Equifax Long-Term Disability Plan.
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For purposes of this Agreement with respect to all Health and Welfare Plans
(other than Plans providing retiree life insurance and health benefits), all
Foreign Plans providing health and welfare benefits, and all Executive Programs,
the term "Transferred Individual" shall only mean those individuals described in
(1) above, together with those individuals that are related thereto as described
below.
An alternate payee under a qualified domestic relations order (within the
meaning of Code (S) 414(p) and ERISA (S) 206(d)), alternate recipient under a
qualified medical child support order (within the meaning of ERISA (S) 609(a)),
beneficiary, or covered dependent, in each case, of an employee or former
employee described in (1) or (2) above shall also be a Transferred Individual
with respect to the interest of such alternate payee, alternate recipient,
beneficiary, or covered dependent in that employee's or former employee's
benefit under the applicable Plans. Such an alternate payee, alternate
recipient, beneficiary, or covered dependent shall not otherwise be considered a
Transferred Individual with respect to his or her own benefits under any
applicable Plans, unless he or she is a Transferred Individual by virtue of
either of subparagraphs (1) or (2) above. In addition, Equifax and PSI may
agree to designate any other individuals, or group of individuals, as
Transferred Individuals.
Subject to the other provisions of this definition, an individual may be a
Transferred Individual pursuant to this definition regardless of whether such
individual is, as of the Distribution Date, alive, actively employed, on a
temporary leave of absence from active employment, on layoff, terminated from
employment, retired or on any other type of employment, post-employment, or
independent contract status relative to Equifax or PSI or to a Equifax or PSI
Plan. Solely for purposes of assigning any Liabilities from Equifax to PSI
under this Agreement, an individual may be a Transferred Individual regardless
of whether the individual is, or was, a common law employee, independent
contractor, temporary employee, temporary service worker, consultant,
freelancer, agency employee, leased employee, on-call worker, incidental worker,
or nonpayroll worker of a member of the Equifax Group or of the PSI Group or in
any other employment, non-employment, or retainer arrangement or other
relationship with any member of the Equifax Group or the PSI Group. Transferred
Individual includes any individual who is on an international assignment whether
paid on a U.S. payroll or a payroll outside the U.S. if such individual
otherwise falls within any of the above categories.
Notwithstanding anything to the contrary in this definition, the term
Transferred Individual under this Agreement shall not include any individual who
was otherwise directly transferred from former employment with a member of the
Equifax Group to employment with any other Person (under an agreement whereby
such Person assumed full liability with respect to all claims and rights related
to such individual's pre-transfer employment), unless such individual has been
re-employed as an active employee of a member of the Equifax Group prior to the
Close of the Distribution Date.
Nothing contained in this Agreement shall permit, or be construed or
interpreted to permit, any non-employee of Equifax or PSI to participate, at any
time, in any Plan of Equifax or PSI.
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(ww) Transition Support Agreement
"Transition Support Agreement" means the Transition Support Agreement
entered into by Equifax and PSI governing certain matters related to the
relationship of the parties after the Distribution.
(xx) VEBA
"VEBA," when immediately preceded by "Equifax," means the Equifax Inc.
Voluntary Employees Beneficiary Association. When immediately preceded by
"PSI," "VEBA" means the welfare benefit fund to be established by PSI pursuant
to Section 5.02 that corresponds to the Equifax VEBA.
1.02 References
Unless the context clearly indicates otherwise, reference to a particular
Article, Section, subsection or paragraph means the Article, Section, subsection
or paragraph so delineated in this Agreement.-21-
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Article II General Principles
2.01 Assumption of Liabilities
Except for each Liability that is expressly retained in writing by Equifax
or excluded in writing by Equifax from those being assumed by PSI and unless
otherwise provided for elsewhere in this Agreement, PSI hereby assumes and
agrees to pay, perform, fulfill, and discharge, in accordance with their
respective terms and conditions, all of the following (regardless of when or
where such Liabilities arose or arise or were or are incurred): (i) all
Liabilities to or relating to Transferred Individuals arising out of or
resulting from employment by, the performance of services for, or any other type
of financial relationship with, a member of the Equifax Group before becoming
Transferred Individuals and thereafter (including Liabilities under Equifax
Plans and PSI Plans), (ii) all other Liabilities to or relating to Transferred
Individuals and other employees or former employees of a member of the PSI
Group, and their dependents and beneficiaries, to the extent relating to,
arising out of or resulting from future, present, or former employment with, or
the provision of services for, a member of the PSI Group or the PSI Business
(including Liabilities under Equifax Plans and PSI Plans), (iii) all Liabilities
relating to, arising out of, or resulting from any other actual or alleged
employment, performance of services for, or any other type of financial
relationship with the PSI Group or the PSI Business; (iv) all Liabilities under
any Individual Agreements relating to Transferred Individuals, and (v) all other
Liabilities relating to, arising out of, or resulting from obligations,
liabilities, and responsibilities expressly assumed or retained by a member of
the PSI Group or a PSI Plan pursuant to this Agreement; provided, however, that,
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consistent with Section 7.18, PSI shall not assume any Liability with respect to
any claim which is made by any Person (other than a Person who is a member of
the PSI Group) and which is related solely to Equifax's exercise of its
fiduciary responsibility for the investment of the assets of the Equifax Plans
prior to the Distribution Date (or prior to the Pension Plan Spinoff Date for
purposes of the Equifax Pension Plan and prior to the Savings Plan Transfer Date
for purposes of the Equifax Savings Plan).
2.02 PSI Group Participation in Equifax Plans
(a) Participation in Equifax Plans
Subject to the terms and conditions of this Agreement, each member of the
PSI Group that is, as of the date of this Agreement, a Participating Company in
any of the Equifax Plans shall continue as such through the Close of the
Distribution Date unless, for periods before the Distribution Date, the parties
mutually agree otherwise. Effective as of any date before the Distribution
Date, a member of the PSI Group not described in the preceding sentence may, at
its request and with the consent of Equifax (which consent shall not be
unreasonably withheld), become a Participating Company in any or all of the
Equifax Plans in which Transferred Individuals participate.
(b) Equifax's General Obligations as Plan Sponsor
Equifax shall continue through the Close of the Distribution Date to
administer, or cause to be administered, in accordance with their terms and
applicable law, the Equifax Plans and Equifax (or its designee) shall have the
sole discretion and authority to interpret the Equifax Plans through such date
and during any subsequent period.
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(c) PSI's General Obligations as Participating Company
PSI shall perform with respect to its participation in the Equifax Plans,
and shall cause each other member of the PSI Group that is a Participating
Company in any Equifax Plan to perform the duties of a Participating Company as
set forth in such Plans, and any written or oral procedures adopted pursuant
thereto, including: (i) assisting in the administration of claims, to the extent
requested by the claims administrator or plan administrator of the applicable
Equifax Plan, (ii) cooperating fully with Equifax Plan auditors, benefit
personnel and benefit vendors, (iii) preserving the confidentiality of all
financial and business arrangements Equifax has or may have with any vendors,
claims administrators, trustees or any other entity or individual with whom
Equifax has entered into an agreement relating to the Equifax Plans, and (iv)
preserving the confidentiality of participant health information (including
health information in relation to leaves under the Family and Medical Leave Act
of 1993, as amended).
(d) Termination of Participating Company Status
Unless otherwise provided in this Agreement, effective as of the Close of
the Distribution Date, PSI and each member of the PSI Group shall cease to be a
Participating Company in the Equifax Plans.
2.03 Establishment of The PSI Plans
Unless otherwise provided in this Agreement, either before the Close of the
Distribution Date or effective Immediately after the Distribution Date, PSI
shall adopt, or shall cause to be adopted, the PSI Pension Plan, the PSI Savings
Plan, the PSI Health and Welfare Plans listed in Appendix B, and the PSI
Executive Programs listed in Appendix A for the benefit of Transferred
Individuals and other current, future, and former employees of the PSI Group.
The foregoing PSI Plans as in effect Immediately after the Distribution Date
shall be substantially identical in all Material Features to the corresponding
Equifax Plans as in effect as of the Close of the Distribution Date. Except for
the PSI Savings Plan and VEBA, any PSI Plans that are adopted by PSI before the
Close of the Distribution Date shall be adopted to become effective Immediately
after the Distribution Date. Notwithstanding the above, PSI shall not be
required to adopt any stock benefits trust or rabbi trust related to any Equifax
Executive Program or Health and Welfare Plan (including any program or plan
maintained by Equifax that is not listed in Appendix A) other than the Executive
Life Trust.
2.04 Terms of Participation by Transferred Individuals
The PSI Plans shall be, with respect to Transferred Individuals, in all
respects the successors in interest to, shall recognize all rights and
entitlements as of the Close of the Distribution Date under, and shall not
provide benefits that duplicate benefits provided by, the corresponding Equifax
Plans for such Transferred Individuals. Equifax and PSI shall agree on methods
and procedures, including amending the respective Plan documents, to prevent
Transferred Individuals from receiving duplicative benefits from the Equifax
Plans and the PSI Plans. PSI shall not permit any PSI Plan to commence benefit
payments to Transferred Individuals until it receives notice from Equifax
regarding the date on which payments under the corresponding Equifax Plan shall
cease. With respect to Transferred Individuals, each PSI Plan shall provide
that all service, all compensation, and all other benefit-affecting
determinations
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that, as of the Close of the Distribution Date, were recognized under the
corresponding Equifax Plan (for periods immediately before the Close of the
Distribution Date) shall, as of Immediately after the Distribution Date, receive
full recognition, credit, and validity and be taken into account under such PSI
Plan to the same extent as if such items originally occurred under such PSI
Plan, except to the extent that duplication of benefits would result. The
provisions of this Agreement for the transfer of assets, if any, from certain
trusts relating to Equifax Plans (including Foreign Plans) to the corresponding
trusts relating to PSI Plans (including Foreign Plans) are based upon the
understanding and agreement of the parties that each such PSI Plan will assume
all Liabilities of the Transferred Individuals and corresponding Equifax Plan to
or relating to Transferred Individuals, as provided for herein. If there are any
legal or other authoritative reasons that any such Liabilities are not
effectively assumed by the appropriate PSI Plan, then the amount of assets
transferred to the trust relating to such PSI Plan from the trust relating to
the corresponding Equifax Plan shall be recomputed, ab initio, as set forth in
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this Agreement but taking into account the retention of such Liabilities by such
Equifax Plan, and assets shall be transferred by the trust relating to such PSI
Plan to the trust relating to such Equifax Plan so as to place each such trust
in the position it would have been in, had the initial asset transfer been made
in accordance with such recomputed amount of assets.
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Article III Defined Benefit Plans
3.01 Establishment of Mirror Pension Trusts
Effective Immediately after the Distribution Date, PSI shall establish, or
cause to be established, the PSI Pension Trust which shall be qualified under
Code (S) 401(a), be exempt from taxation under Code (S) 501(a)(1), and form part
of the PSI Pension Plan. PSI shall, prior to the end of the remedial amendment
period for the PSI Pension Plan, apply for a determination letter from the
Internal Revenue Service that shall provide that the PSI Pension Plan and the
PSI Pension Trust satisfy the requirements for qualification under Code sections
401(a) and 501(a), and PSI shall take all actions necessary or appropriate to
obtain such letter.
3.02 Assumption of Pension Plan and Liabilities and Allocation of Interests in
the Equifax Pension Trust
(a) Assumption of Liabilities by PSI Pension Plan
Immediately after the Pension Plan Spinoff Date all Liabilities to or
relating to Transferred Individuals under the Equifax Pension Plan shall cease
to be Liabilities of the Equifax Pension Plan, and shall be assumed in full and
in all respects by the PSI Pension Plan. If the Pension Plan Spinoff Date does
not occur Immediately after the Distribution Date, the benefits paid to
Transferred Individuals under the PSI Pension Plan for periods prior to the
Pension Plan Spinoff Date shall be reduced by benefits paid to them under the
Equifax Pension Plan. No pension benefits with respect to such Transferred
Individuals shall commence from the Equifax Pension Plan while a Transferred
Individual is employed by the PSI Group.
(b) Asset Allocations and Transfers
(1) Determination of Asset Transfer Date and Allocation
(A) It is expected that assets will be transferred from the Equifax
Pension Trust to the PSI Pension Trust effective as of the date determined under
this subparagraph (A) (the "Pension Plan Spinoff Date"). The asset transfer is
scheduled to occur Immediately after the Distribution Date, provided that the
assets of the Equifax Pension Plan on such date are at least 104% of its Plan
Termination Liability on such date. If the assets of the Equifax Pension Plan
are not at least 104% of its Plan Termination Liability on such date, either
Equifax or PSI may elect not to proceed with the transfer as of the scheduled
date. If the transfer of assets does not occur on the scheduled date, Equifax
and PSI will mutually reschedule the transfer date; provided, however, such
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rescheduled date must occur (i) not later than December 31, 2001, and (ii) on a
date when the assets of the Equifax Pension Plan are at least 104% of its Plan
Termination Liability (or another percentage of such liability that is agreed to
by Equifax and PSI). If the assets of the Equifax Pension Plan are not at least
equal to the applicable minimum percentage of its Plan Termination Liability on
such date, either Equifax or PSI may elect not to proceed with the transfer as
of the rescheduled date.
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(B) If a Pension Plan Spinoff Date occurs in accordance with the
conditions described in subparagraph (A) above, then effective as of the Pension
Plan Spinoff Date and pursuant to the procedures described in this Section
3.02(b), Equifax shall transfer from the Equifax Pension Trust an amount of
assets equal to the Plan Termination Liability with respect to Transferred
Individuals under the Equifax Pension Plan to the PSI Pension Trust. In
addition, Equifax shall also transfer an amount of assets determined in the sole
discretion of Equifax that is in addition to the amount of assets determined in
the prior sentence; provided, however, Equifax shall not transfer such
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additional amount of assets to the extent, determined as of immediately after
the Pension Plan Spinoff Date, such transfer would cause (i) the Equifax Pension
Plan to be funded at less than 101% of its Plan Termination Liability, or (ii)
the PSI Pension Plan to be funded at more than 250% of its Termination
Liability.
(2) Transfer of Assets to PSI Pension Trusts
Effective as soon as practicable after the Pension Plan Spinoff Date,
Equifax shall cause to be transferred from the Equifax Pension Trust to the PSI
Pension Trust an initial amount of assets in cash (the "Initial Asset
Transfer"). The amount of the Initial Asset Transfer shall be not be less than
Equifax's estimate, determined by Equifax in its sole discretion, of the cash
required by the PSI Pension Plan to make payment of benefits and appropriate
expenses from the PSI Pension Trust in accordance with the Plan from the time of
the Initial Asset Transfer to the time of the Bulk Asset Transfer, described
below. In the event PSI notifies Equifax that the Initial Asset Transfer
provides insufficient cash for this purpose, or if Equifax decides to provide
additional funds, Equifax will cause to be transferred other amounts of cash or
marketable assets (a "Subsequent Asset Transfer").
As soon as practicable after the calculation of each Plan's interest in the
Equifax Pension Trust, but in no event before Equifax (or its authorized
representative) determines that the calculation and the data on which it is
based are acceptably complete, accurate, and consistent, Equifax will cause the
appropriate amount of assets to be transferred from the Equifax Pension Trust to
the PSI Pension Trust (the "Bulk Asset Transfer"). The amount of assets to be
transferred in the Bulk Asset Transfer shall be equal to the interests of the
PSI Pension Plan determined pursuant to Section 3.02(b)(1), adjusted by Equifax
as of the date of the Bulk Asset Transfer to the extent necessary to reflect a
proportionate share of additional pension contributions, actual investment gains
and losses experienced in the Equifax Pension Trust, benefit payments, expenses,
the Initial Asset Transfer, Subsequent Asset Transfers, data corrections,
enhancements, and computational refinements from immediately after the Pension
Plan Spinoff Date through the date of the actual transfer of such assets. If
circumstances permit and if agreed to by Equifax and PSI, the parties may
perform the Bulk Asset Transfer at the same time as the Initial Asset Transfer
or any Subsequent Asset Transfers.
(3) Transfer of Specific Assets in Bulk Asset Transfer
The specific assets to be transferred from the Equifax Pension Trust to the
PSI Pension Trust in the Bulk Asset Transfer shall be made up of cash and
marketable assets selected by Equifax consistent with the objective of enabling
PSI to implement prospectively an investment program for the PSI Pension Trust,
but in no event shall Equifax or the Equifax Pension Trust be required to incur
unreasonable transaction costs in the process of transferring assets and
subsequently re-balancing the investment portfolio held by the Equifax Pension
Trust.
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Furthermore, Equifax shall not be required to transfer any specific asset or any
portion of any specific fund or investment manager account, and Equifax shall
not transfer the Venture Capital Assets, as defined in subsection (c) below, and
any amount of PSI Common Stock that would place the PSI Pension Plan in
violation of the employer stock acquisition limitations of ERISA section 407;
provided, however, that Equifax shall transfer interests in group annuity
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contracts held by the Equifax Pension Trust to the extent such group annuity
contracts (in whole or in part, as the case may be) specifically cover the
accrued pension benefits of Transferred Individuals. In transferring specific
assets, Equifax makes no representation as to the appropriateness of the
resulting asset allocation or investment performance resulting from the specific
assets transferred. By accepting the assets transferred, PSI acknowledges that
it and not Equifax is serving as the fiduciary for the PSI Pension Trust with
respect to the determination and actual transfer of assets from the Equifax
Pension Trust and that, acting as fiduciary for the PSI Pension Plan, PSI
further acknowledges that it is able to change the asset allocation as it deems
appropriate at any time. Once the assets have been transferred to and received
by the PSI Pension Trust, such event shall fully and finally foreclose any issue
or matter of any nature whatsoever by PSI, the PSI Pension Trust, the PSI
Pension Plan, or any other trust(s) related to such Plan against Equifax, the
Equifax Pension Trust, the Equifax Pension Plan, or any other trust(s) related
to such Plan with respect to the condition, identity, or value of such assets
and PSI shall fully indemnify Equifax, its employees, officers, directors, and
the Equifax Pension Plan, the Equifax Pension Trust, and any trustees or
fiduciaries thereof regarding any Liability or legal or regulatory issue of any
nature with respect thereto.
(c) Valuation of Venture Capital Assets
For all purposes under this Article III, the assets of the Equifax Pension
Trust that are invested in a portfolio of venture capital funds (collectively,
the "Venture Capital Assets") shall be valued based upon the most recent
quarter-end value reported to the Equifax Pension Plan by the venture capital
funds, provided that Equifax determines that such valuation remains sufficiently
current to be a permissible valuation for purposes of Code section 414(l).
(d) Pension Plan Transition Period
If the Pension Plan Spinoff Date does not occur Immediately after the
Distribution Date, there shall be a transition period (the "Pension Plan
Transition Period") during which Transferred Individuals shall be participants
in both the Equifax Pension Plan and the PSI Pension Plan. The Pension Plan
Transition Period shall begin Immediately after the Distribution Date and shall
end effective as of the Pension Plan Spinoff Date. During the Pension Plan
Transition Period, Equifax shall retain all assets and Liabilities with respect
to Transferred Individuals under the Equifax Pension Plan and the PSI Pension
Plan shall provide equivalent pension benefits (taking into account service and
compensation with Equifax) with an offset for any benefits provided under the
Equifax Pension Plan.
(e) Negotiation if There Is No Pension Plan Spinoff Date
In the event that Equifax is unable to select a Pension Plan Spinoff Date
under the conditions described in Section 3.02(b)(1), Equifax and PSI shall
enter negotiations as soon as practicable after January 1, 2002 on how to
structure the Equifax Pension Plan and the PSI
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Pension Plan with respect to Transferred Individuals. During the period that
negotiations are ongoing and during any period that Equifax and PSI are unable
to reach an agreement that is mutually satisfactory to Equifax and PSI
respecting such matters, the Pension Plan Transition Period shall be continued
as provided in Section 3.02(d).
3.03 Governmental Compliance
Notwithstanding any provision of this Agreement to the contrary, in the
event that at any time any Governmental Authority challenges or seeks to prevent
the transfer of assets and Liabilities provided for in Section 3.02, (i) Equifax
may, in its sole discretion, retain all assets and Liabilities with respect to
Transferred Individuals under the Equifax Pension Plan, and require PSI to
provide equivalent benefits under plans maintained by it with an offset for any
benefits to be provided under the Equifax Pension Plan, or (ii) reach such other
agreement as may be mutually satisfactory to Equifax and PSI respecting the
matters covered by this Article III. If Equifax, in its sole discretion,
retains any Liability of any Transferred Individual under the Equifax Pension
Plan, PSI shall fully reimburse Equifax for the full cash costs of, including
any administrative expenses relating to, any Liabilities that it has not
otherwise agreed to assume that result from the intervention of the Governmental
Authority.
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Article IV Defined Contribution Plans
4.01 Savings Plan
(a) Savings Plan Trust
Prior to the Distribution Date, PSI shall establish, or cause to be
established, a trust qualified under Code (S) 401(a), which shall be exempt from
taxation under Code (S) 501(a)(1), and form part of the PSI Savings Plan. PSI
shall, prior to the end of the remedial amendment period for the PSI Savings
Plan, apply for a determination letter from the Internal Revenue Service that
shall provide that the PSI Savings Plan and its related trust satisfy the
requirements for qualification under Code sections 401(a) and 501(a), and PSI
shall take all actions necessary or appropriate to obtain such letter.
(b) Savings Plan Participation
Effective Immediately after the Distribution Date, the PSI Savings Plan
shall assume and be solely responsible for all ongoing rights of Transferred
Individuals for future participation (including the right to make contributions
through payroll deductions) in the PSI Savings Plan. PSI shall cause the PSI
Savings Plan to recognize and maintain all contribution and investment elections
made by Transferred Individuals under the Equifax Savings Plan as such elections
were last in effect during the period immediately prior to the Distribution Date
and shall apply such elections under the PSI Savings Plan for the remainder of
the period or periods for which such elections are by their terms applicable
(subject in all cases to applicable election change rights of the Transferred
Individuals).
(c) Assumption of Liabilities and Transfer of Assets
Effective on a date selected by Equifax (the "Savings Plan Transfer Date")
and except as provided in the last sentence of this Section: (i) the PSI Savings
Plan shall assume and be solely responsible for all Liabilities to or relating
to Transferred Individuals under the Equifax Savings Plan; and (ii) Equifax
shall cause the accounts of the Transferred Individuals under the Equifax
Savings Plan which are held by its related trust as of the Savings Plan Transfer
Date to be transferred to the PSI Savings Plan and its related trust, and PSI
shall cause such transferred accounts to be accepted by such plan and trust.
Effective no later than the Savings Plan Transfer Date, PSI shall use its
reasonable best efforts to enter into such agreements to accomplish such
assumptions and transfers and the maintenance of the necessary participant
records. As soon as practicable after the Savings Plan Transfer Date, assets
related to the accounts of all Transferred Individuals shall be transferred from
the Equifax Savings Plan to the PSI Savings Plan in cash or in kind, at
Equifax's discretion, and, to the extent practicable, shall be invested in
investment options in the PSI Savings Plan which are comparable to the
investment options in which such accounts were invested immediately before the
Savings Plan Transfer Date. Until such transfer (but subject to reasonable
blackout requirements and subject to subsection (d) below), Transferred
Individuals shall be able to exercise customary investment discretion over their
accounts in the Equifax Savings Plan. No benefits with respect to a Transferred
Individual from the Equifax Savings Plan shall be paid while he or she is
employed by the PSI Group after the Savings Plan Transfer Date.
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(d) Specific Stock Funds in the Equifax and PSI Savings Plan
Effective Immediately after the Distribution Date, a PSI Common Stock fund
shall be added as an investment option to the Equifax Savings Plan, and the PSI
Savings Plan shall provide for both an Equifax Common Stock fund and a PSI
Common Stock fund as investment options. The PSI Common Stock fund in the
Equifax Savings Plan and the Equifax Common Stock fund in the PSI Savings Plan
are each referred to as a "Non-Employer Stock Fund" with respect to the
applicable Plan. Unless Equifax and PSI agree otherwise, each Non-Employer
Stock Fund shall be maintained under the respective Plan through December 31,
2002. After such date, Equifax and PSI agree to cooperate with each other with
respect to the disposition of the stock when either party decides to liquidate
or otherwise terminate the Non-Employer Stock Fund in its Savings Plan. In the
absence of any agreement regarding such liquidation, the liquidation of the Non-
Employer Stock Fund shall be made in a ratable manner over a period of six
months. Furthermore, at any time that Equifax or PSI decides to sell or
otherwise dispose of any amount of shares in their Non-Employer Stock Fund, the
selling party shall follow the procedures of Section 4.02 (except to the extent
waived in writing by an authorized representative of the other party). The
Equifax Savings Plan and the PSI Savings Plan shall each provide that, after the
Distribution Date, no new contributions may be invested in, and no amounts may
be transferred from other investment options to the Non-Employer Stock Fund
under the respective Plan. The Equifax Savings Plan shall provide that no
earnings or dividends under its Non-Employer Stock Fund may be reinvested in PSI
Common Stock and the PSI Savings Plan shall provide that no earnings or
dividends under its Non-Employer Stock Fund may be reinvested in Equifax Common
Stock; provided, however, this requirement shall not prohibit such earnings and
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dividends from remaining in the applicable Non-Employer Stock Fund as cash or as
an amount that is invested in any non-stock investment in such fund.
(e) Miscellaneous Funds
In the event that Equifax determines that it is not feasible or appropriate
to transfer in-kind the assets of a particular investment fund from the Equifax
Savings Plan to the PSI Savings Plan, then the value of the assets in the
affected investment, as of the close of business on the Savings Plan Transfer
Date (plus actual earnings or losses attributable to such amount from the
Savings Plan Transfer Date to the date the assets are actually transferred)
shall be transferred in cash to the PSI Savings Plan and PSI shall invest such
cash in its Savings Plan and trust in the same manner and proportion as it was
invested in the Equifax Savings Plan or otherwise at the direction of the
affected participant.
4.02 Non-Employer Stock Fund Procedures
(a) Application of Procedures
Whenever Equifax or PSI (the "Selling Party") desires to sell or otherwise
dispose of any or all of the shares of stock of the other party (the "Notice
Party") in their respective Non-Employer Stock Funds, the Selling Party shall
follow the procedures for selling or otherwise disposing of such stock, and the
Notice Xxxxx shall be entitled to advance notice and a right of first refusal to
purchase such stock all as provided in this section.
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(b) Right of First Refusal and Notice Procedures
When the Selling Party desires to sell or otherwise dispose of any or all
of the shares of stock in their Non-Employer Stock Fund, the Selling Party shall
first offer such stock for sale to the Notice Party by delivering to the Notice
Party's Chief Financial Officer, or his or her designee, a written offer of such
shares of stock for sale to the Notice Party. The offer for sale to the Notice
Party shall designate the total number of shares of stock desired to be sold
(the "Offered Shares") and any special terms of sale, if the Offered Shares will
not be sold on the market.
(c) Procedures After Notice is Given
The Notice Party shall within 30 days after receipt of notice advise the
Selling Party in writing whether it desires to purchase the Offered Shares, and
the terms upon which such purchase would be consummated. Failure to so notify
the Selling Party shall be deemed a rejection of the offer, and the Selling
Party after the close of the 30-day period may sell or otherwise dispose of the
Offered Shares in its sole discretion. In the event that the Notice Party
advises the Selling Party of its acceptance of the offer for sale, such
acceptance shall specify a purchase date (the "Purchase Date") that is not less
than ten nor more than 30 days after the date of such acceptance, and on which
the New York Stock Exchange is scheduled to be open for trading. The purchase
price paid for the Offered Shares and the terms and conditions of the payment
shall be negotiated and agreed upon between the Selling Party and the Notice
Party before the Purchase Date. If the Selling Party and the Notice Party have
not agreed upon the price and the terms and conditions for payment by the
Purchase Date, the Notice Party shall have the right to purchase all of the
Offered Shares for cash immediately following the close of the New York Stock
Exchange on the Purchase Date, at a price per Offered Share equal to its closing
price on the New York Stock Exchange (but with any adjustment for the size of
the block that is necessary, in the judgment of the valuation expert designated
by Equifax and PSI for this purpose, to accomplish the sale at fair market
value). If the Notice Party does not purchase and pay for all of the Offered
Shares on the Purchase Date, it shall be deemed to have completely rejected the
offer and all of the Offered Shares may be sold or otherwise disposed of by the
Selling Party in its sole discretion.
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Article V Health and Welfare Plans
5.01 Assumption of Health and Welfare Plan Liabilities
(a) Assumption by PSI
Immediately after the Distribution Date, all Liabilities for or relating to
Transferred Individuals under the Equifax Health and Welfare Plans and all
Liabilities relating to the Equifax Severance Pay Plan specified in Section
5.11(b), shall cease to be Liabilities of Equifax or the Equifax Health and
Welfare Plans and shall be assumed by PSI and the corresponding PSI Health and
Welfare Plans. Thus, PSI and the PSI Health and Welfare Plans shall be
responsible for all Liabilities that pertain to Transferred Individuals
regardless of when incurred, including all reported claims that are unpaid, all
incurred but not reported claims as of the Close of the Distribution Date, and
all claims incurred after the Close of the Distribution Date that pertain to
Transferred Individuals under the Equifax Health and Welfare Plans and the PSI
Health and Welfare Plans. PSI shall be required to make all payments due or
payable to Transferred Individuals under the appropriate PSI Health and Welfare
Plans for the period beginning Immediately after the Distribution Date,
including all reported claims that are unpaid and all incurred but not reported
claims as of the Close of the Distribution Date. All treatments which have been
pre-certified for or are being provided on an on-going basis to a Transferred
Individual under the Equifax Health and Welfare Plans as of the Close of the
Distribution Date shall continue to be provided without interruption under the
appropriate PSI Health and Welfare Plan until such treatment is concluded or
discontinued pursuant to applicable plan rules and limitations, and PSI and the
PSI Health and Welfare Plans shall be responsible for all Liabilities relating
to, arising out of, or resulting from such pre-certified or on-going treatments
as of the Close of the Distribution Date. Notwithstanding any of the foregoing
in this Section 5.01, neither PSI nor a PSI Health and Welfare Plan shall assume
any Liability with respect to: (i) a claim incurred on or prior to the Close of
the Distribution Date for which Equifax or an Equifax Health and Welfare Plan
has insurance coverage, and (ii) benefit claims for which Equifax is responsible
under Section 5.07. Furthermore, except to the extent related to claims
referenced in the prior sentence, Equifax shall pay to PSI any prescription drug
rebates received by Equifax under the Equifax Major Medical Plan relating to
claims incurred for Transferred Individuals in respect of periods beginning
Immediately after the Distribution Date.
(b) Certain Audit Procedures with Respect to Health and Welfare Plans
At periodic intervals beginning Immediately after the Distribution Date,
Equifax and PSI shall examine their respective payments and receipts for health
and welfare coverages to ascertain whether Equifax has mistakenly made or
received payments for coverages with respect to Transferred Individuals and
whether PSI has mistakenly made or received payments for coverages with respect
to participants and beneficiaries in the Equifax Health and Welfare Plans (other
than Transferred Individuals). If any such mistaken payments have been made or
received by Equifax or PSI, such mistaken payments and receipts shall first be
netted against each other by Equifax and PSI and thereafter such net payments or
net receipts shall be further netted against the other party's net payments or
net receipts. The party with the remaining amount of mistaken payments shall
transfer such amount in cash to the other party at such time or times as agreed
upon by Equifax and PSI, but not less than quarterly. Furthermore, at periodic
intervals
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beginning Immediately after the Distribution Date, Equifax and PSI shall examine
the payment of benefits and claims, and reimbursements for expenses, by their
respective Health and Welfare Plans to ascertain whether any Equifax Health and
Welfare Plan has mistakenly paid claims or benefits, or reimbursed expenses,
with respect to Transferred Individuals and whether any PSI Health and Welfare
Plan has mistakenly paid claims or benefits, or reimbursed expenses, with
respect to participants and beneficiaries in the Equifax Health and Welfare
Plans (other than Transferred Individuals). If any such mistaken payments or
reimbursements have been made by any Equifax or PSI Health and Welfare Plan,
such mistaken payments and reimbursements shall be netted against the other
corresponding Health and Welfare Plan's mistaken payments and reimbursements.
The Health and Welfare Plan with the remaining amount of mistaken payments and
reimbursements shall transfer such amount in cash to the other party's
corresponding Health and Welfare Plan at such time or times as agreed upon by
Equifax and PSI, but not less than quarterly.
5.02 Establishment of PSI VEBA
On or before the Distribution Date, PSI shall establish, or cause to be
established, the PSI VEBA, which shall constitute a voluntary employees'
beneficiary association under Code (S) 501(c)(9) that is exempt from the
imposition of federal income tax under Code (S) 501(a). The PSI VEBA shall be
established to provide funding for benefits that are permissible under Code (S)
501(c)(9), and in particular those benefits which Equifax funded through the
VEBA as of the Distribution Date. Nothing in this Section 5.02 shall restrict
the right of PSI to discontinue providing any benefit or to discontinue funding
any benefit through the VEBA after the Distribution Date.
5.03 VEBA Asset Transfers
This section shall govern the transfer of assets from the Equifax VEBA to
the payment Services VEBA. Not later than as soon as practicable after the
Distribution Date, Equifax will transfer assets from the Equifax VEBA to the PSI
VEBA in an amount at least equal to the incurred but unpaid claims for which the
PSI VEBA is liable as of the Close of the Distribution Date. If the Equifax VEBA
contains assets in excess of the amount necessary both to make this transfer and
to establish a reserve for the incurred but unpaid claims for which the Equifax
VEBA is liable Immediately after the Distribution Date, Equifax will transfer to
the PSI VEBA a portion of this excess, determined in its discretion. For this
purpose, the Equifax VEBA's Liabilities will be determined by Equifax in
accordance with the procedure it uses, as of the Close of Distribution Date, to
predict outstanding VEBA Liabilities on an ongoing basis.
5.04 Contributions to, Investments of, and Distributions from VEBAs
Equifax shall have sole authority to direct the trustee of the Equifax
VEBA, as to the timing and manner of any contributions to the Equifax VEBA, the
investment of any trust assets, and the distributions and/or transfers of trust
assets, in accordance with applicable law to Equifax, PSI, any Participating
Company in the trust, any paying agent, any successor trustee, or any other
Person. PSI shall have sole authority to direct the trustee of the PSI VEBA, as
to the timing and manner of any contributions to the PSI VEBA, the investment of
any trust assets, and the distributions and/or transfers of trust assets, in
accordance with applicable law to PSI,
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Equifax, any Participating Company in the trust, any paying agent, any successor
trustee, or any other Person.
5.05 Vendor Contracts
(a) ASO Contracts, Group Insurance Policies, HMO Agreements, and Letters
of Understanding
(1) Before the Distribution Date, Equifax shall, in its sole
discretion, take such steps as are necessary under each ASO Contract, Group
Insurance Policy, HMO Agreement, letter of understanding, and arrangement in
existence as of the date of this Agreement to permit PSI to participate in the
terms and conditions of such ASO Contract, Group Insurance Policy, HMO
Agreement, letter of understanding, or arrangement from Immediately after the
Distribution Date through December 31, 2002. Alternatively, Equifax shall take
such steps as are necessary to arrange for an ASO Contract, Group Insurance
Policy, HMO Agreement, letter of understanding, or arrangement covering PSI that
mirrors substantively that covering Equifax. This mirror arrangement shall apply
for all or a portion of such period, as necessary under the circumstances.
Equifax, in its sole discretion, may cause one or more of its ASO Contracts,
Group Insurance Policies, HMO Agreements, letters of understanding, and
arrangements into which Equifax enters after the date of this Agreement to allow
PSI to participate in the terms and conditions thereof. Nothing contained in
this Section 5.05(a) shall preclude Equifax from choosing to enter into ASO
Contracts, Group Insurance Policies, HMO Agreements, letters of understandings,
or other arrangements with new or different vendors. Furthermore, nothing
contained in this paragraph (1) shall require Equifax to use more than its
reasonable best efforts in complying with the provisions of the first and second
sentence of this paragraph (1).
(2) Equifax shall have the right to determine, and shall promptly
notify PSI of, the manner in which PSI's participation in the terms and
conditions of ASO Contracts, Group Insurance Policies, HMO Agreements, letters
of understanding and arrangements as set forth above shall be effectuated;
provided, however, Equifax shall use its best efforts to accommodate any
-----------------
reasonable needs communicated to Equifax by PSI that relate thereto. Such terms
and conditions shall include the financial and termination provisions,
performance standards, methodologies, auditing policies, quality measures,
reporting requirements, and target claims. PSI hereby authorizes Equifax to act
on its behalf to extend to PSI the terms and conditions of the ASO Contracts,
Group Insurance Policies, HMO Agreements, and letters of understanding and
arrangements. PSI shall fully cooperate with Equifax in such efforts, and, for
periods through December 31, 2002, PSI shall not perform any act or fail to take
any action that would prejudice Equifax's efforts and financial arrangements
under the Health and Welfare Plans (other than taking reasonable steps to enter
into replacement ASO Contracts, Group Insurance Policies, HMO Agreements, and
letters of understanding and arrangements for periods after December 31, 2002,
which steps shall not commence publicly prior to January 1, 2002).
(b) Payment and Effect of Change in Rates
Equifax and PSI shall use their reasonable best efforts to cause each of
the insurance companies, HMOs, paid provider organizations and third-party
administrators providing services and benefits under the Equifax Health and
Welfare Plans and the PSI Health and Welfare Plans to
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maintain the premium and/or administrative rates based on the aggregate number
of participants in the Equifax Health and Welfare Plans and the PSI Health and
Welfare Plans, from the Close of the Distribution Date through December 31,
2001, separately rated or adjusted for the demographics, experience or other
relevant factors related to the covered participants of Equifax and PSI,
respectively. To the extent they are not successful in such efforts, Equifax and
PSI shall each bear the revised premium or administrative rates for health and
welfare benefits attributable to the individuals covered by their respective
Health and Welfare Plans. The assistance that Equifax shall provide PSI pursuant
to this subsection (b) shall be provided subject to the terms and conditions of
the Transition Support Agreement.
5.06 Equifax Short-Term Disability Plan
Any final determination made or settlements entered into by Equifax with
respect to claims incurred under the Equifax Short Term Disability Plan by
Transferred Individuals prior to the Distribution Date shall be final and
binding. Equifax shall transfer to PSI, effective Immediately after the
Distribution Date, and PSI shall assume responsibility for (i) administering all
claims incurred by Transferred Individuals before the Close of the Distribution
Date that are administered by Equifax as of the Close of the Distribution Date,
and (ii) all Liabilities under the Equifax Short Term Disability Plan to
Transferred Individuals as of the Close of the Distribution Date, in the same
manner, and using the same methods and procedures, as Equifax used in
determining and paying such claims. Effective Immediately after the
Distribution Date, PSI shall have sole discretionary authority to make any
necessary determinations with respect to such claims, including entering into
settlements with respect to such claims, and shall be solely responsible for any
costs, Liabilities or related expenses of any nature whatsoever related to such
claims, payments or obligations.
5.07 Retiree Health and Life Insurance Benefits
(a) Establishment of PSI Plan
Effective Immediately after the Distribution Date, PSI shall adopt or cause
to be adopted a PSI Plan or Plans that provide medical and life benefits to
retirees. As of Immediately after the Distribution Date, the retiree health and
life benefits under such plan or plans shall be substantially identical to the
retiree health and life benefits that would have been provided under the Equifax
Plan or Plans to similarly situated retirees immediately prior to the Close of
the Distribution Date. Thereafter, nothing in this Agreement shall restrict the
right of PSI to amend or terminate benefits for retirees. In addition, nothing
in this Agreement shall restrict the right of Equifax to amend or terminate, at
any time, benefits for retirees.
(b) Equifax Retiree Health and Life Benefits
In the case of any former employee of the Equifax Group described in
Section 1.01(vv)(2)(B)(i) or (ii), Equifax will retain the Liability related to
such individual's retiree health and life benefits. In addition, any
Transferred Individual who (i) is eligible for retirement under the Equifax
Pension Plan as of the Close of Distribution Date or (ii) becomes eligible for
retirement from PSI by December 31, 2002 (under the terms of the PSI Pension
Plan in effect Immediately after the Distribution Date) shall be eligible for
retiree health and life benefits from Equifax.
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5.08 COBRA and HIPAA
Effectively Immediately after the Distribution Date, PSI or a member of the
PSI Group shall be responsible for administering compliance and providing
coverage in accordance with the health care continuation coverage requirements
for "group health plans" under Title X of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), and the portability
requirements (including the requirements for issuance of certificates of
creditable coverage) under the Health Insurance Portability and Accountability
Act of 1996 with respect to all Transferred Individuals and other employees and
former employees of PSI or a member of the PSI Group and any beneficiaries and
dependents thereof who experience a COBRA qualifying event or loss of coverage
under the PSI Health and Welfare Plans after the Close of the Distribution Date.
Effective Immediately after the Distribution Date, PSI or a member of the PSI
Group shall be responsible for filing all necessary employee change notices with
respect to these persons identified in the previous sentence in accordance with
applicable law.
5.09 Leave of Absence Programs
Effective Immediately after the Distribution Date, PSI or a member of the
PSI Group shall assume sole responsibility for the administration and compliance
of all leaves of absences and related programs (including compliance with the
Family and Medical Leave Act of 1993, as amended) affecting Transferred
Individuals.
5.10 Post-Distribution Transitional Arrangements
(a) Continuance of Elections, Co-Payments, and Maximum Benefits
(1) PSI shall cause the PSI Health and Welfare Plans to recognize and
maintain all coverage and contribution elections made by Transferred Individuals
under the Equifax Health and Welfare Plans, as such elections were last in
effect during the period immediately prior to the Distribution Date, and shall
apply such elections under the PSI Health and Welfare Plans for the remainder of
the period or periods for which such elections are by their terms applicable
(subject to applicable election change rights). Equifax shall cause the claims
administrator for the Equifax Health and Welfare Plans to transfer to the claims
administrator for the PSI Health and Welfare Plan all data necessary to maintain
such coverage and elections.
(2) PSI shall cause the PSI Health and Welfare Plans to recognize and
give credit for (A) all amounts applied to deductibles, out-of-pocket maximums,
and other applicable benefit coverage limits with respect to such expenses which
have been incurred by Transferred Individuals under the Equifax Health and
Welfare Plans for the remainder of the benefit limit year in which the
Distribution occurs, and (B) all benefits paid to Transferred Individuals under
the Equifax Health and Welfare Plans, during and prior to the benefit limit year
in which the Distribution occurs, for purposes of determining when such persons
have reached their maximum benefits under the PSI Health and Welfare Plans.
(3) PSI shall recognize and cover under the PSI Health and Welfare
Plans all eligible employee populations covered by the Equifax Health and
Welfare Plans (pertaining to Transferred Individuals) as of the Close of the
Distribution Date (determined under the applicable
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Plan documents), including all categories of part-time employees (which are
fully or partially eligible for employer contributions).
(4) PSI shall (A) provide coverage to Transferred Individuals under
the PSI Health and Welfare Plans without the need to undergo a physical
examination or otherwise provide evidence of insurability, and (B) recognize and
maintain all irrevocable assignments and elections made by Transferred
Individuals in connection with their life insurance coverage under the Equifax
Health and Welfare Plans and any predecessor plans.
(b) Administration
(1) Coordination of Benefits for Spouses and Dependents
Effective as of the earlier of the first January 1 or the first applicable
change in status (as defined under the PSI Health and Welfare Plans) that occurs
after the Distribution Date, PSI shall cause the PSI Health and Welfare Plans to
permit eligible Transferred Individuals to cover their lawful spouses as
dependents if such lawful spouses are active or retired Equifax employees (but
were not otherwise covered as a dependent under the Equifax Health and Welfare
Plans or other Equifax Plans due to their previous status as both employee and
dependent of an Equifax employee). As of the earlier of the first January 1 or
the first applicable status change (as defined under the PSI Health and Welfare
Plans) that occurs Immediately after the Distribution Date, Equifax shall cause
the Equifax Health and Welfare Plans to permit eligible Equifax employees to
cover their lawful spouses as dependents if such lawful spouses are active or
retired PSI employees. All benefits provided under any such Health and Welfare
Plans to a lawful spouse or dependent of the other company's employees shall be
coordinated pursuant to the terms and conditions of the applicable Equifax and
PSI Plans.
(2) Health Care Financing Administration Data Match
Effective Immediately after the Distribution Date, PSI shall assume all
Liabilities relating to, arising out of or resulting from claims verified by
Equifax or PSI under the Health Care Financing Administration data match reports
that relate to Transferred Individuals. PSI and Equifax shall share all
information necessary to verify Health Care Financing Administration data match
reports regarding Transferred Individuals. PSI shall not change any employee
identification numbers assigned by Equifax without notifying Equifax of the
change and the new Employee Identification Number.
(c) Equifax Reimbursement Plans
To the extent any Transferred Individual contributed to an account under
the Equifax Reimbursement Plans during the calendar year that includes the
Distribution Date, effective Immediately after the Distribution Date, PSI shall
recognize any such Transferred Individual's account balance, determined as of
the Close of the Distribution Date, and PSI shall thereafter be solely
responsible for making any and all payments relative to such account balance of
the Transferred Individual for all claims during such calendar year under the
applicable PSI Reimbursement Plan. As soon as practicable after the
Distribution Date, Equifax shall calculate as of the Close of the Distribution
Date the aggregate net balance in the accounts of Transferred Individuals under
the Equifax Reimbursement Plans, expressed relative to the contributions
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received from such Transferred Individuals. If the contributions received from
a Transferred Individual exceed the reimbursements made to or on behalf of such
Transferred Individual, the Transferred Individual shall be deemed to have a
positive account balance. In turn, if the contributions received from a
Transferred Individual are less than the reimbursements made to or on behalf of
such Transferred Individual, the Transferred Individual shall be deemed to have
a negative account balance. If the aggregate net balance in the accounts of all
such Transferred Participants is a positive number, then Equifax shall pay this
amount in cash to PSI as soon as practicable after the Distribution Date, and if
the aggregate net balance in the accounts of all such Transferred Participants
is a negative number, then PSI shall pay this amount in cash to Equifax as soon
as practicable after the Distribution Date.
5.11 Severance Pay Plan
(a) Transferred Individuals
Effective Immediately after the Distribution Date, PSI shall be responsible
for all Liabilities relating to the Equifax Severance Pay Plan and all other
severance programs and obligations, both written and unwritten, that may pertain
to Transferred Individuals. Furthermore, PSI shall be solely responsible for
all Liabilities for Transferred Individuals in connection with each Individual
Agreement. As of the date of this Agreement, Equifax has, to its best
knowledge, provided PSI with a copy of each Individual Agreement.
(b) Additional Liability Assumed by PSI
Effective Immediately after the Distribution Date, PSI shall also be
responsible for all Liabilities relating to the Equifax Severance Pay Plan and
all other severance programs and obligations (including Individual Agreements),
both written and unwritten, that may pertain to any individual who, as of the
Close of the Distribution Date, is receiving benefits under the Equifax
Severance Pay Plan or any other severance program, obligation or agreement
(including Individual Agreements) with Equifax and whose most recent active
employment was with a member of the PSI Group or an entity or affiliate related
to the PSI Business.
Any final determination made or settlements entered into by Equifax with
respect to the Equifax Severance Pay Plan and all other severance programs and
obligations relating to individuals described in this subsection (b) prior to
the Distribution Date shall be final and binding. Effective Immediately after
the Distribution Date, PSI shall have sole discretionary authority to make any
necessary determinations with respect to the payment of severance benefits,
including entering into settlements with respect to such benefits, and shall be
solely responsible for any costs, Liabilities or related expenses of any nature
whatsoever related thereto.
5.12 Application of Article V to the PSI Group
Any reference in this Article V to "PSI" shall include a reference to
another member of the PSI Group when and to the extent PSI has caused the other
member of the PSI Group to (a) become a party to an ASO Contract, Group
Insurance Policy, HMO Agreement, letter of understanding or arrangement
associated with a PSI Health and Welfare Plan, (b) become a self-insured entity
for the purposes of one or more PSI Health and Welfare Plans, (c) assume all or
a portion of the Liabilities or the administrative responsibilities with respect
to benefits which
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arose before the Close of the Distribution Date under a Equifax Health and
Welfare Plan and which were expressly assumed by PSI pursuant to this Agreement,
or (d) take any other action, extend any coverage, assume any other Liability or
fulfill any other responsibility that PSI would otherwise be required to take
under the terms of this Article V, unless it is clear from the context that the
particular reference is not intended to include another member of the PSI Group.
In all such instances in which a reference in this Article V to "PSI" includes a
reference to another member of the PSI Group, PSI shall be responsible to
Equifax for ensuring that the other member of the PSI Group complies with the
applicable terms of this Agreement and that the Transferred Individuals employed
by such member of the PSI Group shall have the same rights and entitlements to
benefits under the applicable PSI Health and Welfare Plans that the Transferred
Individual would have had, if he or she had instead been employed by PSI.
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Article VI Executive Programs
6.01 Assumption of Obligations
Consistent with the principles set forth in Article II and except as
otherwise provided herein, effective Immediately after the Distribution Date,
the PSI Group shall assume and be solely responsible for all Liabilities to or
relating to Transferred Individuals under all Equifax Executive Programs. PSI
shall be solely responsible for all such Liabilities, notwithstanding any
failure by PSI to complete its obligations under this Article.
6.02 Short-Term Incentive Awards
With respect to short-term incentive Awards that would otherwise be payable
under an Equifax Plan to Transferred Individuals and that are based in whole or
in part on the performance of Equifax for the 2001 performance year ("Equifax-
Based Awards"), effective immediately prior to the Distribution a determination
shall be made by Equifax of the extent to which the Equifax-Based Awards have
been earned for the 2001 performance year as of such date and no further amounts
shall be earned by Transferred Individuals after such date. The amounts earned
(if any) under the Equifax-Based Awards as of the Close of the Distribution Date
shall be payable to Transferred Individuals after December 31, 2001 in
accordance with the usual terms of the Equifax Plan; provided, that the
Transferred Individual must be employed by PSI on December 31, 2001. With
respect to short-term incentive Awards that would otherwise be payable under an
Equifax Plan to Transferred Individuals whose Award is based solely on the
performance of the PSI Business for the 2001 performance year, such Awards shall
be paid by PSI in accordance with the terms of the Equifax Plan under which they
were granted. PSI shall be solely responsible for paying all Awards pursuant to
this section and shall pay such Awards in cash or options to acquire PSI Common
Stock as elected by the Transferred Individual. Effective Immediately after the
Distribution Date, PSI shall make new short-term incentive Awards under a Plan
established pursuant to Section 2.03 for Transferred Individuals who have
Equifax-Based Awards for the period beginning Immediately after the Distribution
Date through December 31, 2001. PSI shall establish Award levels, performance
criteria and payment terms for such Awards which shall be consistent with the
past practices of Equifax with respect to such Awards. PSI shall be solely
responsible for paying all such Awards.
6.03 Long-Term Incentive Plan
(a) Plan 19 (1999-2001)
Equifax will take the actions required, including any necessary plan
amendment, to provide that all Transferred Individuals who are participants in
Plan 19 (1999-2001) of the Equifax Inc. Performance Share Plan for Officers on
the Distribution Date shall be treated as if their employment with PSI counted
as employment by Equifax pursuant to the provisions of such Plan. The effect of
this treatment shall be that each such Transferred Individual shall receive the
payment he or she would have been ultimately entitled to receive under "Plan 19"
of said Plan at the expiration of the performance period of the outstanding
Awards, provided the Transferred Individual remains employed by PSI through
December 31, 2001 and the other terms and
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conditions of the Performance Share Plan are satisfied. The payments shall be
made in cash and shares of Equifax stock, in accordance with the terms of the
Performance Share Plan at the conclusion of the Plan 19 performance period.
Equifax shall be solely responsible for the payments of all amounts pursuant to
this subsection (a). The Equifax Compensation Committee shall also revise the
performance goals for Plan 19, for awards previously granted but not yet earned,
to reflect the Distribution and a consequent change in certain anticipated
measuring techniques.
(b) Plan 20 (2000-2002) and 2001 Awards
The outstanding Awards to Transferred Individuals under Plan 20 (2000-2002)
of the Plan shall be replaced by Awards to such Transferred Individuals under
the PSI Key Management Long-Term Incentive Plan for a performance period ending
on December 31, 2002. The Award levels and performance criteria for the Awards
shall be designed to allow the Transferred Individuals to earn amounts similar
to what they could have received under Plan 20. No Awards shall be made to
Transferred Individuals under the Equifax Inc Key Management Long-Term Incentive
Plan for the performance period starting in 2001.
6.04 Stock Incentive Plan
The treatment of outstanding Awards described in this Section 6.04 shall
apply to Transferred Individuals, including Transferred Individuals who are
compensated under a payroll which is administered outside the 50 United States,
its territories and possessions, and the District of Columbia; provided,
--------
however, if such treatment is not legally permitted, or results in adverse
-------
consequences for Equifax, any of its affiliates or the Transferred Individual,
as determined by Equifax in its sole discretion, Equifax may determine, in its
sole discretion, a different treatment.
(a) Stock Options
Effective Immediately after the Distribution Date, each Award or grant
consisting of an option, regardless of the date of the grant, under an Equifax
Stock Incentive Plan that is outstanding as of the Close of the Distribution
Date for all Transferred Individuals shall be converted to options for PSI
Common Stock with the same material terms and conditions under the PSI Stock
Incentive Plan, and shall be transferred to the recordkeeper of the PSI Stock
Incentive Plan. As soon as practicable after the Distribution Date, the number
of options and the exercise price for such options converted to options for PSI
Common Stock shall be determined in accordance with the Conversion Formula.
Such converted PSI stock option grants shall continue to vest and become
exercisable under the PSI Stock Incentive Plan in accordance with the terms of
the original grant under the Equifax Stock Incentive Plan. PSI shall be the
obligor with respect to such options and shall be solely responsible for all
stock option grants and payments under the PSI Stock Incentive Plan, with
respect to, but not limited to, recordkeeping, administrative costs and fees,
payroll taxes, plan maintenance, option exercise and related tax filings. PSI
shall, as soon as practicable after the Distribution Date provide Transferred
Individuals with an agreement or notice relating to the Transferred Individual's
options under the PSI Stock Incentive Plan.
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(b) Transferred Individuals Who are Not Active Employees of PSI
Each outstanding Award or grant under the Equifax Stock Incentive Plan that
is held by a Transferred Individual who, as of the Close of the Distribution
Date, is not an active employee of, or on leave of absence from and expected to
return to employment with, the PSI Group shall not be converted to a PSI option
and shall remain outstanding Immediately after the Distribution Date in
accordance with its terms as applicable as of the Close of the Distribution
Date, subject to such adjustments as may be applicable to outstanding Awards
held by individuals who remain active employees of, or on leave of absence from,
the Equifax Group after the Distribution Date.
6.05 Deferred Compensation Plan
Effective Immediately after the Distribution Date, PSI shall establish the
PSI Deferred Compensation Plan and the amounts credited to the accounts of
Transferred Individuals under the Equifax Deferred Compensation Plan shall be
transferred to the PSI Plan. The Transferred Individuals' termination of
employment with the Equifax Group as a result of the Distribution shall not
constitute a termination of employment for purposes of the PSI Plan. Nothing
herein shall restrict Equifax's or PSI's rights to amend or terminate their
respective Plans in the future.
6.06 Executive Life and Supplemental Retirement Benefit Plan
(a) Plan Agreements
Equifax and PSI shall take all necessary or appropriate actions to assign
to PSI, Equifax's right, title and interest in and to any and all agreements or
documents that relate to Transferred Individuals under the Equifax Executive
Life Plan, including the split-dollar life insurance agreements and the
collateral assignments, effective Immediately after the Distribution Date. Such
actions shall include entering into such agreements and executing such documents
as may be necessary for PSI to fulfill any obligations of Equifax relating to
the Equifax Executive Life Plan to any insurance company, agent or broker and
the Transferred Individuals. For purposes of the collateral assignments, such
actions shall include Equifax assigning its right, title and interest in and to
the collateral assignments of Transferred Individuals to PSI, or in the
alternative, Equifax releasing its right, title and interest in and to the
collateral assignments of Transferred Individuals and PSI executing new
collateral assignments with the Transferred Individuals that supplant Equifax's
right, title and interest in and to the prior collateral assignments. Effective
Immediately after the Distribution Date, PSI shall assume and be solely
responsible for all Liabilities and shall be entitled to all benefits of Equifax
under the Equifax Executive Life Plan relating to Transferred Individuals.
(b) Executive Life Trust
Equifax shall amend the Equifax Executive Life Trust to require the trustee
to waive its rights to the distribution of PSI Common Stock otherwise payable
with respect to the Equifax stock held in the Equifax Executive Life Trust.
Effective Immediately after the Distribution Date, PSI shall establish the PSI
Executive Life Trust which shall be substantially identical in all Material
Features to the Equifax Executive Life Trust, provided that PSI is not required
to fund the PSI Executive Life Trust.
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6.07 Global Stock Purchase Plan Loan Program
Effective Immediately after the Distribution Date, Equifax shall assign and
transfer to PSI the outstanding loans, and any related security arrangements,
relating to Transferred Individuals under the Equifax Global Stock Purchase Plan
Loan Program. PSI agrees to assume the Liability and be solely responsible for
the ongoing administration of such loans.
6.08 Change In Control Agreements
Effective Immediately after the Distribution Date, PSI shall enter into
change in control agreements with the Transferred Individuals listed in Appendix
D which are substantially identical in all Material Features to the
corresponding Equifax change in control agreements. PSI shall be solely
responsibly for all Liabilities related to the PSI change in control agreements
with the Transferred Individuals.
6.09 Restricted Stock
Effective Immediately after the Distribution Date, Transferred Individuals
who hold shares of Equifax restricted stock will receive the dividend of PSI
Common Stock and such shares will be subject to the same restrictions as the
Equifax common stock (counting employment with PSI as employment with Equifax).
In addition, Transferred Individuals may elect to convert their Equifax
restricted stock into shares of PSI Common Stock in accordance with the
Conversion Formula.
6.10 Waiver of Dividend Relating to Certain Trusts
Prior to the Close of the Distribution Date, Equifax shall cause the
appropriate parties responsible for the investment of the assets of the
Executive Life Trust, the Equifax Stock Benefits Trust and all other rabbi
trusts established by Equifax to waive their receipt of the dividend of PSI
Common Stock to be received as a result of the Distribution.
6.11 Automobile Program
As of the Close of the Distribution Date, PSI shall assume all of Equifax's
Liabilities and obligations with respect to the motor vehicles leased by Equifax
for Transferred Individuals pursuant to lease agreements under any Equifax
Executive automobile program.
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Article VII General
7.01 Payment of and Accounting Treatment for Expenses and Balance Sheet Amounts
(a) Expenses
All expenses (and the accounting treatment related thereto) through the
Close of the Distribution Date regarding matters addressed herein shall be
handled and administered by Equifax and PSI in accordance with past Equifax
accounting and financial practices and procedures pertaining to such matters.
To the extent expenses that pertain to Transferred Individuals are unpaid as of
the Close of the Distribution Date, PSI or any member of the PSI Group shall be
solely responsible for such payment, without regard to any accounting treatment
to be accorded such expense by Equifax or PSI on their respective books and
records. The accounting treatment to be accorded all expenses incurred prior to
the Distribution Date, whether such expenses are paid by Equifax or PSI, shall
be determined by Equifax in its sole discretion.
(b) Balance Sheet Amounts
PSI shall assume any and all balance sheet liability that relates to any
Liability assumed by it under this Agreement as of the Close of the Distribution
Date or thereafter. The balance sheet liabilities to be assumed pursuant to
this Section shall be determined by Equifax in its sole discretion consistent
with past accounting practices, consistently applied.
7.02 Sharing of Participant Information
Equifax and PSI shall share, Equifax shall cause each applicable member of
the Equifax Group to share, and PSI shall cause each applicable member of the
PSI Group to share, with each other and their respective agents and vendors
(without obtaining releases) all participant information necessary for the
efficient and accurate administration of each of the Equifax Plans and the PSI
Plans during the period Equifax and PSI are coordinating with respect to vendor
contracts under Section 5.05. Equifax and PSI and their respective authorized
agents shall, subject to applicable laws on confidentiality, be given reasonable
and timely access to, and may make copies of, all information relating to the
subjects of this Agreement in the custody of the other party, to the extent
necessary for such administration. Until the Close of the Distribution Date,
all participant information shall be provided in the manner and medium
applicable to Participating Companies in the Equifax Plans generally, and
thereafter until December 31, 2002, all participant information shall be
provided in a manner and medium that is compatible with the data processing
systems of Equifax as in effect on the Close of the Distribution Date, unless
otherwise agreed to by Equifax and PSI.
7.03 Restrictions on Extension of Option Exercise Periods, Amendment or
Modification of Option Terms and Conditions
PSI agrees that, without the prior written consent of Equifax, neither PSI
nor any of its affiliates or Subsidiaries shall take any action to extend the
exercise period of or to provide for additional vesting with respect to any PSI
options, which were received pursuant to Section 6.04 in replacement of Equifax
options, for Transferred Individuals, including providing such
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Transferred Individuals with leaves of absences or special termination or
severance arrangements.
7.04 Non-Solicitation of Employees/Others
For the period through December 31, 2002, PSI and its affiliates and
Subsidiaries will not, without the prior written consent of Equifax, and Equifax
and its affiliates and Subsidiaries will not, without the prior written consent
of PSI, whether directly or indirectly, solicit (in writing or orally) for
employment or other services, whether as an employee, officer, director, agent,
consultant, or independent contractor, any person who is or was at the time of
such solicitation an employee, agent, consultant, independent contractor,
representative, officer, or director of the other party; provided, however, that
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this covenant shall not apply in cases where such solicitation occurs more than
30 days after the individual to be solicited has had his employment or other
service relationship with the other party terminated by the employer.
7.05 Reporting and Disclosure and Communications to Participants
While PSI is a Participating Company in the Equifax Plans, PSI shall take,
and shall cause each other applicable member of the PSI Group to take, all
actions necessary or appropriate to facilitate the distribution of all Equifax
Plan-related communications and materials to employees, participants and
beneficiaries, including summary plan descriptions and related summaries of
material modification, summary annual reports, investment information,
prospectuses, notices and enrollment materials for the PSI Plans. PSI shall
assist, and PSI shall cause each other applicable member of the PSI Group to
assist, Equifax in complying with all reporting and disclosure requirements of
ERISA for plan years ending on or before December 31, 2002, including the
preparation of Form 5500 annual reports for the Equifax Plans, where applicable.
7.06 Plan Audits
(a) Audit Rights with Respect to the Allocation or Transfer of Plan Assets
The allocation of Pension Plan assets and liabilities pursuant to Section
3.02 and the transfer of assets from Equifax's VEBA pursuant to Section 5.02,
shall, at the election of PSI, be audited on behalf of both Equifax and PSI by
an actuarial and benefit consulting firm mutually selected by the parties;
provided, however, that no audit shall be permitted after the date of the Bulk
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Asset Transfer, in the case of the Pension Plans, or the actual transfer of
assets, in the case of the Equifax VEBA. The scope of such audit shall be
limited to the accuracy of the data and the accuracy of the computation and
adherence to the methodology specified in this Agreement and, except as set
forth in the penultimate sentence of this Section 7.06(a), such audit shall not
be binding on the parties. The actuarial and benefit consulting firm shall
provide its report to both Equifax and PSI. No other audit shall be conducted
with respect to the allocation of Plan assets and no issue of any nature
whatsoever may be raised by PSI once the transfer of assets has been completed.
Subject to the following two sentences, no transfer of assets shall occur unless
and until PSI agrees to the allocation of assets. To the extent such audit
recommends a change to the value of assets allocated to a PSI Plan of less than
5%, the original determination shall be binding on the parties and shall not be
subject to the dispute resolution process provided in Section 7.17. To the
extent such audit recommends such a change of 5% or more (a "Significant
Allocation
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Change"), any unresolved dispute between the parties as to whether and how to
make any change in response to such recommendation shall be subject to the
dispute resolution process provided in Section 7.17. PSI shall pay or shall be
responsible for the payment of the full costs of such audit; provided, however,
-------- -------
that in the event such audit recommends a Significant Allocation Change and such
recommendation is attributable to variances in actuarial assumptions or
simplification or modification of the allocation calculated by Equifax, Equifax
shall be responsible for the full costs of such audit.
(b) Audit Rights With Respect to Information Provided
(1) Subject to Section 7.06(b)(2), each of Equifax and PSI, and their
duly authorized representatives, shall have the right to conduct audits at any
time upon reasonable prior notice, at their own expense, with respect to all
information provided to it or to any Plan recordkeeper or third-party
administrator by the other party. Subject to Sections 7.06(a) and 7.06(b)(2),
the party conducting the audit shall have the sole discretion to determine the
procedures and guidelines for conducting audits and the selection of audit
representatives. The auditing party shall have the right to make copies of any
records at its expense, subject to the confidentiality provisions set forth in
the Distribution Agreement, which are incorporated by reference herein. The
party being audited shall provide the auditing party's representatives with
reasonable access during normal business hours to its operations, computer
systems and paper and electronic files, and provide workspace to its
representatives. After any audit is completed, the party being audited shall
have the right to review a draft of the audit findings and to comment on those
findings in writing within five business days after receiving such draft.
(2) The auditing party's audit rights under this Section 7.06(b) shall
include the right to audit, or participate in an audit facilitated by the party
being audited, of any Subsidiaries and affiliates of the party being audited and
of any benefit providers and third parties with whom the party being audited has
a relationship, or agents of such party, to the extent any such persons are
affected by or addressed in this Agreement (collectively, the "Non-parties").
The party being audited shall, upon written request from the auditing party,
provide an individual (at the auditing party's expense) to supervise any audit
of any such benefit provider or third party. The auditing party shall be
responsible for supplying, at its expense, additional personnel sufficient to
complete the audit in a reasonably timely manner.
(c) Audits Regarding Vendor Contracts
From Immediately after the Distribution Date through December 31, 2002,
Equifax and PSI and their duly authorized representatives shall have the right
to conduct joint audits with respect to any vendor contracts that relate to both
the Equifax Health and Welfare Plans and the PSI Health and Welfare Plans. The
scope of such audits shall encompass the review of all correspondence, account
records, claim forms, canceled drafts (unless retained by the bank), provider
bills, medical records submitted with claims, billing corrections, vendor's
internal corrections of previous errors and any other documents or instruments
relating to the services performed by the vendor under the applicable vendor
contracts. Equifax and PSI shall agree on the performance standards, audit
methodology, auditing policy and quality measures and reporting requirements
relating to the audits described in this Section 7.06(c) and the manner in which
costs incurred in connection with such audits will be shared.
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(d) Audit Assistance
To the extent that either Equifax or PSI is required to respond to any
Governmental Authority, vendor or recordkeeper audit, or otherwise conducts an
audit with respect to any provision or obligation of the other party under this
Agreement, Equifax or PSI, whichever is applicable, shall be required to fully
cooperate with the audit, including providing such records and data as may be
necessary to respond to any document or data request that may arise by reason of
such audit. The party being audited shall provide the auditing party's
representatives with reasonable access during normal business hours to its
operations, computer systems and paper and electronic files, and provide
workspace to its representatives. To the extent the results of an audit result
in any correction to the Liabilities involving any Transferred Individuals, PSI
shall be solely responsible for all such costs and expenses associated with such
Liabilities and any related corrections.
7.07 Beneficiary Designations/Release of Information/Right to Reimbursement
All beneficiary designations, authorizations for the release of information
and rights to reimbursement made by or relating to Transferred Individuals under
Equifax Plans shall be transferred to and be in full force and effect under the
corresponding PSI Plans until such beneficiary designations, authorizations or
rights are replaced or revoked by, or no longer apply, to the relevant
Transferred Individual.
7.08 Requests for Internal Revenue Service Rulings and United States Department
of Labor Opinions and Satisfaction of Obligations Arising From Voluntary
Compliance Programs
(a) Cooperation
PSI shall cooperate fully with Equifax on any issue relating to the
transactions contemplated by this Agreement for which Equifax elects to seek a
determination letter or private letter ruling from the Internal Revenue Service
or an advisory opinion from the United States Department of Labor. Equifax
shall cooperate fully with PSI with respect to any request for a determination
letter or private letter ruling from the Internal Revenue Service or advisory
opinion from the United States Department of Labor with respect to any of the
PSI Plans relating to the transactions contemplated by this Agreement.
(b) Applications
Equifax and PSI shall make such applications to regulatory agencies,
including the Internal Revenue Service and the United States Department of
Labor, as may be necessary to ensure that any transfers of assets from the
Equifax VEBA to the PSI VEBA will neither (i) result in any adverse tax, legal
or fiduciary consequences to Equifax and PSI, the Equifax VEBA, the PSI VEBA,
any participant therein or beneficiaries thereof, any successor welfare benefit
funds established by or on behalf of PSI, or the trustees of such trusts, nor
(ii) contravene any statute, regulation or technical pronouncement issued by any
regulatory agency. Before the Close of the Distribution Date, PSI shall prepare
all forms required to obtain favorable determination letters from the Internal
Revenue Service with respect to the tax-exempt status of the PSI VEBA. PSI and
Equifax agree to cooperate with each other to fulfill any filing and/or
regulatory reporting obligations with respect to such transfers.
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7.09 Fiduciary and Related Matters
The parties acknowledge that Equifax will not be a fiduciary with respect
to the PSI Plans and that PSI will not be a fiduciary with respect to the
Equifax Plans. The parties also acknowledge that neither party shall be deemed
to be in violation of this Agreement if it fails to comply with any provisions
hereof based upon its good faith determination that to do so would violate any
applicable fiduciary duties or standards of conduct under ERISA or other
applicable law. Notwithstanding any other provision in this Agreement, the
parties may take such actions as necessary or appropriate to effectuate the
terms and provisions of this Agreement.
7.10 No Third-Party Beneficiaries; Non-Termination of Employment
This Agreement is not intended and shall not be construed as to confer upon
any Person other than the parties hereto any rights or remedies hereunder. No
provision of this Agreement or the Distribution Agreement shall be construed to
create any right, or accelerate entitlement, to any compensation or benefit
whatsoever on the part of any Transferred Individual or other future, present,
or former employee of the Equifax Group or the PSI Group under any Equifax Plan
or PSI Plan or otherwise. Without limiting the generality of the foregoing,
except as expressly provided in this Agreement: (i) neither the Distribution nor
the termination of the Participating Company status of a member of the PSI Group
shall cause any employee to be deemed to have incurred a termination of
employment which entitles such individual to the commencement of benefits under
any of the Equifax Plans, any of the PSI Plans, or any of the Individual
Agreements; and (ii) nothing in this Agreement other than those provisions
specifically set forth herein to the contrary shall preclude PSI, at any time
after the Close of the Distribution Date, from amending, merging, modifying,
terminating, eliminating, reducing, or otherwise altering in any respect any PSI
Plan, any benefit under any Plan or any trust, insurance policy or funding
vehicle related to any PSI Plan.
7.11 Collective Bargaining
To the extent any provision of this Agreement is contrary to the provisions
of any applicable collective bargaining agreement to which Equifax or any
affiliate of Equifax is a party, the terms of such collective bargaining
agreement shall prevail. Should any provision of this Agreement be deemed to
relate to a topic determined by an appropriate authority to be a mandatory
subject of collective bargaining, Equifax or PSI may be obligated to bargain
with the union representing affected employees concerning those subjects. In
the event a force surplus affecting members of a bargaining unit in both the
Equifax Group (on the one hand) and the PSI Group (on the other hand) directly
results, due to the provisions of such a collective bargaining agreement, in an
employee involuntarily leaving the payroll of the party not declaring the
surplus, then the party declaring the surplus shall bear the cost of any
severance payable to such employee.
7.12 Consent of Third Parties
If any provision of this Agreement is dependent on the consent of any third
party (such as a vendor) and such consent is withheld, Equifax and PSI shall use
their reasonable best efforts to implement the applicable provisions of this
Agreement to the full extent practicable. If any provision of this Agreement
cannot be implemented due to the failure of such third party to
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consent, Equifax and PSI shall negotiate in good faith to implement the
provision in a mutually satisfactory manner. The phrase "reasonable best
efforts" as used in this Agreement shall not be construed to require the
incurrence of any non-routine or unreasonable expense or liability or the waiver
of any right.
7.13 Foreign Plans
The treatment of Foreign Plans by Equifax and PSI shall be set forth in
Appendix C.
7.14 Effect If Distribution Does Not Occur
If the Distribution does not occur, then all actions and events that are,
under this Agreement, to be taken or occur before or effective as of the Close
of the Distribution Date, Immediately after the Distribution Date, or otherwise
in connection with the Distribution, shall not be taken or occur except to the
extent specifically agreed by PSI and Equifax.
7.15 Relationship of Parties
Nothing in this Agreement shall be deemed or construed by the parties or
any third party as creating the relationship of principal and agent, partnership
or joint venture between the parties, it being understood and agreed that no
provision contained herein, and no act of the parties, shall be deemed to create
any relationship between the parties other than the relationship set forth
herein.
7.16 Affiliates
Each of Equifax and PSI shall cause to be performed, and hereby guarantees
the performance of, all actions, agreements and obligations set forth in this
Agreement to be performed by members of the Equifax Group or members of the PSI
Group, respectively, where relevant.
7.17 Dispute Resolution
Any controversy or claim arising out of or relating to this Agreement, or
the breach hereof, shall be settled pursuant to the dispute resolution
provisions described in the Distribution Agreement.
7.18 Indemnification
Effective on the Distribution Date, PSI and each member of the PSI Group
agree to jointly and severally indemnify and hold harmless Equifax and each
member of the Equifax Group and each of their respective officers, directors,
employees and agents and the Equifax Plans and any related trusts, including the
Equifax Pension Trust and the trustees thereof, from and against any and all
losses, Liabilities, claims, suits, damages, costs and expenses (including
without limitation, reasonable attorneys' fees and any and all expenses
reasonably incurred in investigating, preparing or defending against any pending
or seriously threatened litigation or claim) (collectively, "Indemnifiable
Expenses") arising out of or related in any manner to Transferred Individuals,
except for Indemnifiable Expenses arising solely out of a claim which is made by
any Person (other than a Person who is a member of the PSI or Equifax Group) and
which is related solely to Equifax's exercise of its fiduciary responsibility
for the investment of
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the assets of the Equifax Plans prior to the Distribution Date (or prior to the
Pension Plan Spinoff Date for purposes of the Equifax Pension Plan and prior to
the Savings Plan Transfer Date for purposes of the Equifax Savings Plan). In
addition, effective on the Distribution Date, Equifax agrees to indemnify and
hold harmless each member of the PSI Group and each of their respective
officers, directors, employees and agents and the PSI Plans and any related
trusts, including the PSI Pension Trust and the trustees thereof, from and
against any and all Indemnifiable Expenses arising solely out of a claim which
is made by any Person (other than a Person who is a member of the PSI or Equifax
Groups) and which is related solely to Equifax's exercise of its fiduciary
responsibility for the investment of the assets of the Equifax Plans prior to
the Distribution Date (or prior to the Pension Plan Spinoff Date for purposes of
the Equifax Pension Plan and prior to the Savings Plan Transfer Date for
purposes of the Equifax Savings Plan).
If any action is brought or any claim is made against a party or person in
respect of which indemnity may be sought pursuant to this Section 7.18 (the
"Indemnitee"), the Indemnitee shall, within twenty (20) days after the receipt
of information indicating that an action or claim is likely, notify in writing
the party from whom indemnification is sought (the "Indemnitor") of the
institution of the action or the making of the claim, and the Indemnitor shall
have the right, and at the request of the Indemnitee, shall have the obligation,
to assume the defense of the action or claim, including the employment of
counsel. If the Indemnitor assumes the defense of the action or claim, the
Indemnitor shall be entitled to settle the action or claim on behalf of the
Indemnitee without the prior written consent of the Indemnitee, unless such
settlement would, in addition to the payment of money, materially affect the
ongoing business or employment of the Indemnitee.
The Indemnitee shall have the right to interpret the provisions of its own
Plans and to employ its own counsel, but the fees and expenses of that counsel
shall be the responsibility of the Indemnitee unless: (i) the employment of that
counsel shall have been authorized in writing by the Indemnitor in connection
with the defense of the action or claim; (ii) the Indemnitor shall not have
employed counsel to have charge of the defense of such action or claim; or (iii)
such Indemnitee shall have reasonably concluded that there may be defenses
available to it which are different from or additional to those available to the
Indemnitor (in which case the Indemnitor shall not have the right to direct any
different defense of the action or claim on behalf of the Indemnitee). The
Indemnitee shall, in any event, be kept fully informed of the defense of any
such action or claim. Except as expressly provided above, in the event that the
Indemnitor shall not previously have assumed the defense of an action or claim,
at such time as the Indemnitor does assume the defense of the action or claim,
the Indemnitor shall not thereafter be liable to any Indemnitee for legal or
other expenses subsequently incurred by the Indemnitee in investigating,
preparing or defending against such action or claim.
Anything in this Section 7.18 to the contrary notwithstanding, the
Indemnitor shall not be liable for any settlement of any claim or action
effected without its written consent; provided, however, that if after due
-------- -------
notice the Indemnitor refuses to defend a claim or action, the Indemnitee shall
have the right to defend and/or settle such action, and the Indemnitee shall not
be precluded from making a claim against the Indemnitor for reasonable expenses
and liabilities resulting from such defense and/or settlement in accordance with
this Section 7.18.
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Notwithstanding the foregoing provisions of this Section 7.18, there may be
particular actions or claims which reasonably could result in both parties being
liable to the other under the indemnification provisions of this Agreement. In
such events, the Parties shall endeavor, acting reasonably and in good faith, to
agree upon a manner of conducting the defense and settlement of the action or
claim with a view to minimizing the legal expenses and associated costs that
might otherwise be incurred by the parties, such as, by way of illustration
only, agreeing to use the same legal counsel.
The indemnification provisions of this Section 7.18 shall not inure to the
benefit of any third party. By way of illustration only, an insurer who would
otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto, or, solely by virtue of the indemnification
provisions, hereof, have any subrogation rights with respect thereto, it being
expressly understood and agreed that no insurer or any other third party shall
be entitled to a "windfall" (i.e., a benefit they would not be entitled to
receive in the absence of the indemnification provisions) by virtue of these
indemnification provisions.
7.19 W-2 Matters
Pursuant to the alternative procedure set forth in Internal Revenue Service
Rev. Proc. 96-60, PSI will assume Equifax's obligations to furnish Forms W-2 to
all Transferred Individuals for the year in which the Distribution Date occurs.
Equifax will provide to PSI the information not available to PSI relating to
periods ending on the Distribution Date necessary for PSI to prepare and
distribute Forms W-2 to Transferred Individuals for the year in which the
Distribution Date occurs, which will include all remuneration earned by
Transferred Individuals before the Distribution Date and Forms W-4 provided to
Equifax by Transferred Individuals to the extent that PSI is not already in
possession of such information. PSI shall prepare and distribute such forms.
To the extent permitted by applicable law, in particular Code (S)(S) 3121(a)(1)
and 3306(b)(1), PSI shall be deemed a successor employer to Equifax with respect
to Transferred Individuals for purposes of calculating the annual wage
limitation to which state and federal payroll taxes apply.
7.20 Confidentiality
Except as required by applicable law, for the purpose of satisfying any
obligation under this Agreement or with the consent of the other party, neither
Equifax nor PSI shall disclose to any Person (other than members of the Equifax
Group or the PSI Group) any information (including, but not limited to,
information regarding fees, expenses, assets, Liabilities and Plan terms)
relating to the Equifax Plans, PSI Plans or Transferred Individuals. Each of
Equifax and PSI shall be permitted to disclose such information within the
Equifax Group and PSI Group only to the extent reasonably necessary in the
ordinary course of business.
7.21 Notices
Any notice, demand, claim, or other communication under this Agreement
shall be in writing and shall be given in accordance with the provisions for
giving notice under the Distribution Agreement.
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7.22 Interpretation
Words in the singular shall be held to include the plural and vice versa
and words of one gender shall be held to include the other genders as the
context requires. The terms "hereof," "herein," and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole (including all Appendices hereto) and not to any particular
provision of this Agreement. The word "including" and words of similar import
when used in this Agreement shall mean "including, without limitation," unless
the context otherwise requires or unless otherwise specified. The word "or"
shall not be exclusive.
7.23 Governing Law/Execution
This Agreement shall be governed by and construed in accordance with the
laws of the State of Georgia, may not be assigned by either party without the
prior written consent of the other, and shall bind and inure to the benefit of
the parties hereto and their respective successors and permitted assignees.
This Agreement may not be amended or supplemented except by an agreement in
writing signed by Equifax and PSI. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Employee Benefits
Agreement to be duly executed as of the day and year first above written.
EQUIFAX INC.
By:
-----------------------------------
Name:
Title:
EQUIFAX PS, INC.
By:
-----------------------------------
Name:
Title:
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Appendix A PSI Executive Programs
Equifax PS, Inc. 2001 Stock Incentive Plan
Equifax PS, Inc. Key Management Long-Term Incentive Plan
Equifax PS, Inc. Deferred Compensation Plan
Equifax PS, Inc. Executive Life and Supplemental Retirement Benefit Plan
Global Stock Purchase Plan Loan Program
Individual Agreements
Including employment, separation, change in control and consulting
agreements.
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Xxxxxxxx X PSI Health and Welfare Plans
Health Plans (ERISA):
PSI Major Medical Plan (which includes medical, pre-65 post-retirement
medical, dental, prescription drug, various HMOs and OSCs, vision, and
employee assistance benefits).
PSI Retiree Medical Plan (post-65 medical)
Group Insurance Plans (ERISA):
PSI Group Basic Life and Supplemental Life Insurance Plan
PSI Accidental Death and Dismemberment Insurance Plan
PSI Group 24-Hour Business Travel Accident Plan
Disability Plans (ERISA):
PSI Long Term Disability Plan
PSI Short Term Disability Plan
Severance Plans (ERISA):
PSI Severance Pay Plan
Cafeteria Plan (ERISA):
PSI Before Tax Premium Plan
PSI Health Care Account Plan
PSI Dependent Care Account Plan (non-ERISA)
Miscellaneous Plans (non-ERISA):
PSI Educational Assistance Program
PSI Vacation Program
* PSI shall have the right to combine or disaggregate any of the above Plans
for any purpose, including the satisfaction of any disclosure or reporting
requirements under ERISA.
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Appendix C Foreign Plans
This Appendix C describes the principles under which Foreign Plans shall be
treated. For purposes of this Appendix, outside the U.S. means outside the 50
United States, its territories and possessions, and the District of Columbia,
and employed outside the U.S. means compensated under a payroll which is
administered outside the United States.
C.1 Plans Covering only Employees of Equifax or PSI
Effective as of the Close of the Distribution Date or such later date as
may be required by applicable law, union, or works council agreement, any
Foreign Plan that covers only individuals employed outside the U.S. by the
Equifax Group shall be the sole responsibility of the Equifax Group and no
member of the PSI Group shall have any Liability with respect to such a Plan;
and any Foreign Plan that covers only individuals employed outside the U.S. by
the PSI Group shall be the sole responsibility of the PSI Group and no member of
the Equifax Group shall have any Liability with respect to such a Plan.
C.2 Plans Covering Employees of Both Equifax and PSI
(a) Termination of Participation
To the extent legally permitted and except as otherwise provided herein,
effective as of the Close of the Distribution Date, or as soon as practicable
thereafter, PSI and each other applicable member of the PSI Group shall cease to
be a Participating Company in each Foreign Plan maintained by Equifax or the
Equifax Group and each other applicable member of the Equifax Group shall cease
to be a Participating Company in each Foreign Plan maintained by the PSI Group.
Equifax and PSI recognize that because of the requirements of local law or
administrative considerations, a transition period extending beyond the Close of
the Distribution Date may be required during which Equifax or PSI may continue
to participate in each other's Foreign Plans. During such transition period,
Equifax and PSI agree to cooperate in handling any and all matters with respect
to the Foreign Plans.
(b) Mirror Plans
(1) Effective Immediately after the Distribution Date, PSI shall
adopt, or cause to be adopted, Foreign Plans for the benefit of employees of the
PSI Group employed outside the United States who are eligible to participate in
Equifax Foreign Plans and shall cause such PSI Foreign Plans to be substantially
identical in all Material Features to the corresponding Equifax Foreign Plans as
in effect on the Distribution Date. Notwithstanding the preceding sentence - (i)
PSI may satisfy this requirement by extending coverage to such individuals under
a Foreign Plan of the PSI Group which was in effect before the Distribution Date
and which is, with respect to all Material Features, at least equal to the
corresponding Equifax Foreign Plan, and (ii) PSI is not required to adopt a
defined benefit pension plan for the benefit of its Canadian employees (but
instead shall make an equitable adjustment to the defined contribution plan
covering these employees).
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(2) Effective Immediately after the Distribution Date, Equifax shall
adopt, or cause to be adopted, Plans for the benefit of employees of the Equifax
Group employed outside the United States who are eligible to participate in PSI
Plans and shall cause such Plans to be substantially identical in all Material
Features to the corresponding PSI Foreign Plans as in effect on the Distribution
Date; provided, however, that Equifax may satisfy this requirement by extending
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or continuing coverage to such individuals under an Equifax Foreign Plan of the
Equifax Group which was in effect before the Distribution Date.
(3) The continuation by Equifax or PSI of separate employment terms
and conditions for employees previously covered by the other entity's Plans
shall not continue beyond the time legally required.
(c) Transfer of Assets
As of the Close of the Distribution Date, Equifax and PSI will use their
reasonable best efforts to ensure that, to the extent legally permitted: (i)
Liabilities of the Foreign Plans of Equifax relating to Transferred Individuals
shall be assumed by the appropriate Foreign Plans of PSI; and (ii) an
appropriate portion of any assets of the Foreign Plans of Equifax shall be
transferred to the appropriate Foreign Plans of PSI, and vice versa.
C.3 Severance Issues
If under applicable law, any Transferred Individual employed outside the
U.S. is deemed to have incurred a termination of employment as a result of the
Distribution or any other transaction contemplated by the Distribution Agreement
or this Agreement, which entitles such individual to receive any payment or
benefit under any Foreign Plan, governmental plan or arrangement or pursuant to
any law or regulation, including severance benefits, notwithstanding such
individual's continued employment by the PSI Group, then PSI shall be liable for
any such payment or benefit and, notwithstanding any other provision hereof, to
the extent legally permitted, appropriate adjustments shall be made to the
treatment of such individual during such continued employment, including not
giving such individual credit for prior service and/or treating such individual
as having been newly hired immediately after such deemed termination, for
purposes of all applicable Foreign Plans. Liability with respect to such
payments shall be the responsibility of PSI.
C.4 Legally Permitted
For purposes of this Appendix C, "legally permitted" means permitted under
the laws of the country, the labor union, works council, or collective agreement
without adverse consequences to Equifax, PSI or Transferred Individuals, as
determined by Equifax, in its sole discretion, including mandated waiting
periods before which working conditions (including benefits) cannot be changed,
and upon receiving required agreement from individual employees and/or Plan
trustees, foundation boards and members, and any other organizations having a
recognized right to determine or affect benefits and/or funding of the Plan.
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C.5 Multinational Pooling
Equifax and PSI shall keep their existing multinational pooling
arrangements intact so long as the parties mutually agree. If there is any
dividend payable from the consolidated pooling arrangements with respect to the
2001 pool accounting year, that dividend will be allocated between Equifax and
PSI proportionately, based on the contribution to the overall surplus of the
pooling arrangements by the Equifax Group and the PSI Group, respectively.
Alternatively, any net deficits incurred under any one (or all) consolidated
pooling arrangement(s) will be apportioned back to the entity which incurred the
deficit proportionately based on each entities' contribution to the net deficit.
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Appendix D Change in Control Agreements
D.1 Tier I Agreements
Xxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxx
Xxxx Xxxxxxxxxx
D.2 Tier II Agreements
Xxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxx
Xxxx Xxxxxxxx
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