EXHIBIT 10.15
GRANTOR TRUST AGREEMENT
THIS GRANTOR TRUST AGREEMENT (the "Trust Agreement") is made effective
this 8th day of July, 2001, by and between Certegy Inc., a Georgia corporation,
(the "Company") and Wachovia Bank, N.A. (the "Trustee").
RECITALS
(a) WHEREAS, the Company has adopted the Executive Life and Supplemental
Retirement Benefit Plan (the "Plan");
(b) WHEREAS, the Company has incurred or expects to incur liability under
the terms of the Plan with respect to the individuals participating in
the Plan and their designated beneficiaries (the "Participants" and
"Beneficiaries");
(c) WHEREAS, the Company hereby establishes this Trust (the "Trust") and
shall contribute to the Trust assets that shall be held therein,
subject to the claims of the Company's creditors in the event of the
Company's Insolvency, as herein defined, until distributed in such
manner and at such times as specified in the Plan and in this Trust
Agreement;
(d) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of
the Plan as an unfunded plan maintained for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"); and
(e) WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide itself with a source of funds (the "Fund") to
assist it in satisfying its liabilities under the Plan in the
circumstances described herein.
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF THE TRUST
(a) The Trust is intended to be a grantor trust, of which the Company is
the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended,
and shall be construed accordingly.
(b) The Company shall be considered the grantor for the purposes of the
Trust.
(c) The Trust hereby established is revocable by the Company; and it shall
become irrevocable upon a Change of Control, as defined in Section 15.
(d) The Company hereby deposits with the Trustee in the Trust One Thousand
Dollars ($1,000.00) which shall become the initial principal of the
Trust to be held, administered and disposed of by the Trustee as
provided in this Trust Agreement.
(e) The principal of the Trust, and any earnings thereon shall be held in
the Trust separate and apart from other funds of the Company and shall
be used exclusively for the uses and purposes of Participants and
general creditors as herein set forth. Participants and their
Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created
under the Plan and this Trust Agreement shall be unsecured contractual
rights of Participants and their Beneficiaries against the Company.
Any assets held by the Trust will be subject to the claims of the
general creditors of the Company under federal and state law in the
event the Company is Insolvent, as defined in Section 3(a) herein.
(f) The Company, in its sole discretion, may at any time, and from time to
time, make additional deposits of cash or other property, including
Company stock, acceptable to the Trustee to augment the principal to
be held, administered and disposed of by the Trustee as provided in
this Trust Agreement. Prior to a Change of Control, neither the
Trustee nor any Participant or Beneficiary shall have any right to
compel additional deposits.
(g) Upon a Potential Change of Control (as defined in Section 15), the
Company shall, as soon as possible, but in no event longer than thirty
(30) days following the occurrence of a Potential Change of Control,
make an additional contribution to the Trust, if required, in an
amount that is sufficient, when aggregated with the other assets of
the Trust, to fund the Trust in an amount equal to no less than 100%
but no more than 120% of the amount necessary to pay the insurance
premiums required on Policies, as defined herein, purchased pursuant
to the Plan, until such Policies have been fully paid, in accordance
with Section 2(c) below.
(h) In the event a Change of Control does not occur within one year of a
Potential Change of Control, the Company shall have the right to
recover any amounts contributed to and remaining on hand in the Trust.
(i) Upon a Change of Control, the Company shall, as soon as possible, but
in no event longer than thirty (30) days following the occurrence of a
Change of Control make an irrevocable contribution to the Trust in any
additional amount which is necessary to be sufficient to fund the
Trust in an amount equal to no less than 100% but no more than 120% of
the amount necessary to pay the insurance premiums required on
Policies purchased pursuant to the Plan, until such Policies have been
fully paid, in accordance with Section 2(c) below.
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SECTION 2. PAYMENTS FROM THE TRUST
(a) Prior to a Change of Control, distributions from the Trust shall be
made by the Trustee to the insurance company identified in or pursuant
to Section 2(e) below (the "Insurance Company") at the direction of the
Company.
(b) As insurance premiums become due with respect to the life insurance
policies (each a "Policy") purchased pursuant to the Plan on the lives
of the Participants, the Company shall - (i) pay such insurance
premiums directly to the Insurance Company, (ii) transfer to the
Trustee within thirty (30) days prior to the premium due date funds
sufficient to allow the Trustee to pay to the Insurance Company such
insurance premiums, or (iii) direct the Trustee to pay directly to the
Insurance Company such insurance premiums from the Fund.
(c) (1) After a Potential Change of Control and before a Change of
Control, the Company shall deliver to the Trustee a schedule of
insurance premiums due under the Plan. Subsequent to a Change of
Control, the Trustee shall pay insurance premiums due in accordance
with such schedule. If the Company has not transferred the required
amounts at least thirty (30) days prior to each due date, the Trustee
shall make such payments from the assets of the Fund. If the principal
of the Trust, and any earnings thereon, are not sufficient to make
payments of insurance premiums in accordance with the terms of such
schedule, the Company shall make the balance of each such payment as it
falls due in accordance with such Schedule. The Trustee shall notify
the Company in the event that principal and earnings are not sufficient
to make any premium payment. Nothing in this Trust Agreement shall
relieve the Company of its liabilities to pay benefits due under the
Plan except to the extent such liabilities are met by application of
assets of the Trust.
(2) Subsequent to a Change of Control, if the Company borrows any
portion of the cash surrender value of any Policy, the Trustee shall
immediately repay to the Insurance Company any amount that has been so
borrowed, as certified to it by the Participant whose Policy is the
subject of the loan. The Trustee may request any further reasonable
evidence of such a loan.
(3) Subsequent to a Change of Control, if the Trustee becomes
aware that the Company withdraws any portion of the cash surrender
value of any Policy, the Trustee shall consult with the Insurance
Company or the broker of record, as it deems appropriate, to determine
the maximum premiums which may be paid on an annual basis to restore
any such withdrawal and to retain the life insurance nature of the
Policy, and shall make said payments.
(d) The Trustee may institute an action to collect a contribution due the
Trust following a Change of Control or in the event that the Trust
should ever experience a short-fall in the amount of assets necessary
to make current payments pursuant to the terms of the Plan.
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(e) The primary purposes of this Trust are to insure (i) that, following a
Change of Control, premiums will continue to be paid to Pacific Life
Insurance Company, or such successor company as the Company may
identify to the Trustee in writing, as required pursuant to the Plan
and all split-dollar life insurance agreements with employees of the
Company or its subsidiaries which have been entered into by the Company
and Plan Participants pursuant to the Plan, and (ii) that any successor
to the Company, or its successor management, does not withdraw cash
values from the Policies prior to the respective distribution dates of
said Policies. Prior to a Change of Control, the payment of Policy
insurance premiums will be made pursuant to the provisions of Section
2(b). Subsequent to a Change of Control, the Trustee shall make such
payments unless the Company has previously certified to having made
them, according to the provisions hereof. In order to make such
payments, the Trustee may be required to sell all or a portion of any
assets held in the Fund. In the event that the Fund includes Company
stock, the Company hereby agrees to promptly, and in any event within
sixty (60) days of a request for registration by the Trustee, take any
and all actions necessary to register the Company stock held in the
fund for sale and to maintain on a continuous basis any registrations
required to permit said sales pursuant to applicable federal and state
laws, until all Company stock has been sold. In connection with any
such securities registrations, the Company shall take any and all
actions necessary in connection therewith, including without
limitation: (i) causing any special audits to be performed, if required
and (ii) if requested by the Trustee, entering into an underwriting
agreement with underwriters selected by the Trustee in customary form
including providing indemnification for the underwriters and the
Trustee. Any and all costs arising in connection with the filing of any
securities registrations, including the fees and disbursements of
counsel for the Trustee, shall be borne entirely by the Company other
than underwriting discounts and commissions or commissions of broker
dealers which shall be payable by the Trustee from the assets of the
Trust. The Company consents that an action may be brought in equity or
in law by the Trustee or by any Participant in the Plan, to compel its
compliance with the provisions of this Trust, including but not limited
to the foregoing sentence and the provisions of Section 2(d) above.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS WHEN THE
COMPANY IS INSOLVENT
(a) The Trustee shall cease payment of insurance premiums to the Insurance
Company if the Company is Insolvent. The Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) the Company is
unable to pay its debts as they become due, (ii) the Company is
subject to a pending proceeding as a debtor under the United States
Bankruptcy Code or (iii) the Company is determined to be insolvent by
the Federal Deposit Insurance Corporation, the Federal Reserve, or the
Office of the Comptroller of Currency.
(b) At all times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of
the Company under federal and state law as set forth below.
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(1) The Board of Directors and the Chief Executive
Officer of the Company shall have the duty to inform the
Trustee in writing that the Company is Insolvent. If a person
claiming to be a creditor of the Company alleges in writing to
the Trustee that the Company has become Insolvent, the Trustee
shall determine whether the Company is Insolvent and, pending
such determination, the Trustee shall discontinue payment of
insurance premiums to the Insurance Company.
(2) Unless the Trustee has actual knowledge that the
Company is Insolvent, or has received notice from the Company
or a person claiming to be a creditor alleging that the
Company is Insolvent, the Trustee shall have no duty to
inquire whether the Company is Insolvent. The Trustee may in
all events rely on such evidence concerning the Company's
solvency as may be furnished to the Trustee and that provides
the Trustee with a reasonable basis for making a determination
concerning the Company's solvency.
(3) If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue paying
insurance premiums to the Insurance Company and shall hold the
assets of the Trust for the benefit of the Company's general
creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Participants or their Beneficiaries to
pursue their rights as general creditors of the Company with
respect to payments due under the Plan or otherwise.
(4) The Trustee shall resume the payment of insurance
premiums to the Insurance Company in accordance with Section 2
of this Trust Agreement only after the Trustee has determined
that the Company is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee discontinues
the payment of insurance premiums from the Trust pursuant to Section
3(b) hereof and subsequently resumes such payments, the first payment
following such discontinuance shall include the aggregate amount of
all payments due to the Insurance Company under the terms of the Plan
for the period of such discontinuance, less the aggregate amount of
any payments made to the Insurance Company by the Company in lieu of
the payments provided for hereunder during any such period of
discontinuance.
SECTION 4. PAYMENTS WHEN A SHORTFALL OF THE TRUST ASSETS OCCURS
(a) If there are not sufficient assets for the payment of insurance
premiums pursuant to Section 2 or Section 3(c) hereof and the Company
does not otherwise make such payments within a reasonable time after
demand from the Trustee, the Trustee shall make payment of insurance
premiums from the Trust to the Insurance Company for the benefit of
Participants and their Beneficiaries in the following order of
priority:
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(1) All Policies should be funded based on original expected
performance, with premiums adequate to keep the Policies in
force until the insured attains age 100; and
(2) Any remaining funding should be made pro-rata based upon
remaining scheduled premium payments.
It is understood that it is not possible to anticipate precisely future
financial status of the Policies, and the contingencies that could
occur both before and after a Change of Control. Therefore, the Trustee
will have discretion to implement any reasonable method of allocating
Trust assets that are, in its sole discretion, determined to ensure
complete funding of the Policies pursuant to the premium schedule
provided. The Trustee may rely solely on the services of the broker of
record as well as any other sources in making this determination.
(b) Upon receipt of a contribution from the Company necessary to make up
for a shortfall in the payments due, the Trustee shall resume payments
to the Insurance Company under the Plan. Following a Change of Control,
the Trustee shall have the right to compel a contribution to the Trust
from the Company to make up for any shortfall.
SECTION 5. PAYMENTS TO THE COMPANY
Except as provided in Section 3 hereof in the event the Company is Insolvent,
after the Trust has become irrevocable (as provided in Section 1) the Company
shall have no right or power to direct the Trustee to return to the Company or
to divert to others any of the Trust assets before all payment of insurance
premiums have been made to the Insurance Company pursuant to the terms of the
Plan.
SECTION 6. INVESTMENT AUTHORITY
(a) Consistent with the provisions of Section 10(a) below, the Trustee
shall not be liable in discharging its duties hereunder, including,
without limitation, its duty to invest and reinvest the Fund, if it
acts for the exclusive benefit of the Participants and their
Beneficiaries, in good faith and as a prudent person would act in
accomplishing a similar task and in accordance with the terms of this
Trust Agreement and any applicable federal or state laws, rules or
regulations.
(b) Subsequent to a Change of Control, the Trustee shall have the following
powers, in investing and reinvesting the Fund, in its sole discretion:
(1) To invest and reinvest in any readily marketable common and
preferred stocks, bonds, notes, debentures (including
convertible stocks and securities but not including any stock
or security of the Trustee other than a de minimis amount held
in a collective or mutual fund), certificates of deposit or
demand or time deposits (including any such deposits with the
Trustee) and shares of investment companies and mutual funds,
without being limited to the classes or property in
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which the Trustee is authorized to invest by any law or any
rule of court of any state and without regard to the
proportion any such property may bear to the entire amount of
the Fund. Without limitation, the Trustee may invest the Trust
in any investment company (including any investment company or
companies for which the Trustee or an affiliated company acts
as the investment advisor ("Special Investment Companies") or,
any insurance contract or contracts issued by an insurance
company or companies in each case as the Trustee may determine
provided that the Trustee may in its sole discretion keep such
portion of the Trust in cash or cash balances for such
reasonable periods as may from time to time be deemed
advisable pending investment or in order to meet contemplated
payments of insurance premiums;
(2) To commingle for investment purposes all or any portion of the
Fund with assets of any other similar trust or trusts
established by the Company with the Trustee for the purpose of
safeguarding deferred compensation or retirement income
benefits of its employees and/or directors;
(3) To retain any property at any time received by the Trustee;
(4) To sell or exchange any property held by it at public or
private sale, for cash or on credit, to grant and exercise
options for the purchase or exchange thereof, to exercise all
conversion or subscription rights pertaining to any such
property and to enter into any covenant or agreement to
purchase any property in the future;
(5) To participate in any plan of reorganization, consolidation,
merger, combination, liquidation or other similar plan
relating to property held by it and to consent to or oppose
any such plan or any action thereunder or any contract, lease,
mortgage, purchase, sale or other action by any person;
(6) To deposit any property held by it with any protective,
reorganization or similar committee, to delegate discretionary
power thereto, and to pay part of the expenses and
compensation thereof any assessments levied with respect to
any such property to be deposited;
(7) To extend the time of payment of any obligation held by it;
(8) To hold uninvested any monies received by it, without
liability for interest thereon, but only in anticipation of
payments due for investments, reinvestments, expenses or
disbursements;
(9) To exercise all voting or other rights with respect to any
property held by it and to grant proxies, discretionary or
otherwise;
(10) For the purposes of the Trust, to borrow money from others, to
issue its promissory note or notes therefor, and to secure the
repayment thereof by pledging any property held by it;
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(11) To employ suitable contractors and counsel, who may be counsel
to the Company or to the Trustee, and to pay their reasonable
expenses and compensation from the Fund to the extent not paid
by the Company;
(12) To register investments in its own name or in the name of a
nominee; to hold any investment in bearer form; and to combine
certificates representing securities with certificates of the
same issue held by it in other fiduciary capacities or to
deposit or to arrange for the deposit of such securities with
any depository, even though, when so deposited, such
securities may be held in the name of the nominee of such
depository with other securities deposited therewith by other
persons, or to deposit or to arrange for the deposit of any
securities issued or guaranteed by the United States
government, or any agency or instrumentality thereof,
including securities evidenced by book entries rather than by
certificates, with the United States Department of the
Treasury or a Federal Reserve Bank, even though, when so
deposited, such securities may not be held separate from
securities deposited therein by other persons; provided,
however, that no securities held in the Fund shall be
deposited with the United States Department of the Treasury or
a Federal Reserve Bank or other depository in the same account
as any individual property of the Trustee, and provided,
further, that the books and records of the Trustee shall at
all times show that all such securities are part of the Trust
Fund;
(13) To settle, compromise or submit to arbitration any claims,
debts or damages due or owing to or from the Trust,
respectively, to commence or defend suits or legal proceedings
to protect any interest of the Trust, and to represent the
Trust in all suits or legal proceedings in any court or before
any other body or tribunal; provided, however, that the
Trustee shall not be required to take any such action unless
it shall have been indemnified by the Company to its
reasonable satisfaction against liability or expenses it might
incur therefrom;
(14) To hold and retain policies of life insurance, annuity
contracts, and other property of any kind which policies are
contributed to the Trust by the Company or any subsidiary of
the Company or are purchased by the Trustee;
(15) To hold any other class of assets which may be contributed by
the Company and that is deemed reasonable by the Trustee,
unless expressly prohibited herein;
(16) To loan any securities at any time held by it to brokers or
dealers upon such security as may be deemed advisable, and
during the terms of any such loan to permit the loaned
securities to be transferred into the name of and voted by the
borrower or others; and
(17) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or desirable
for the protection of the Fund.
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(c) Prior to a Change of Control, the Company shall have the right, subject
to this Section, to direct the Trustee with respect to investments.
Absent any such direction, the Trustee shall continue the investment of
the Fund as provided in this section.
(1) The Company may at any time direct the Trustee to segregate
all or a portion of the Fund in a separate investment account
or accounts and may appoint one or more investment managers
and/or an investment committee established by the Company to
direct the investment and reinvestment of each such investment
account or accounts. In such event, the Company shall notify
the Trustee of the appointment of each such investment manager
and/or investment committee. No such investment manager shall
be related, directly or indirectly, to the Company, but
members of the investment committee may be employees of the
Company.
(2) Thereafter, the Trustee shall make every sale or investment
with respect to such investment account as directed in writing
by the investment manager or investment committee. It shall be
the duty of the Trustee to act strictly in accordance with
each direction. The Trustee shall be under no duty to question
any such direction of the investment manager or investment
committee, to review any securities or other property held in
such investment account or accounts acquired by it pursuant to
such directions or to make any recommendations to the
investment manager or investment committee with respect to
such securities or other property.
(3) Notwithstanding the foregoing, the Trustee, without obtaining
prior approval or direction from an investment manager or
investment committee, shall invest cash balances held by it
from time to time in short term cash equivalents including,
but not limited to, through the medium of any short term
common, collective or commingled trust fund established and
maintained by the Trustee subject to the instrument
establishing such trust fund, U.S. Treasury Bills, commercial
paper (including such forms of commercial paper as may be
available through the Trustee's Trust Department),
certificates of deposit (including certificates issued by the
Trustee in its separate corporate capacity), and similar type
securities, with a maturity not to exceed one year; and,
furthermore, sell such short term investments as may be
necessary to carry out the instructions of an investment
manager or investment committee regarding more permanent type
investment and directed distributions.
(4) The Trustee shall neither be liable nor responsible for any
loss resulting to the Fund by reason of any sale or purchase
of an investment directed by an investment manager or
investment committee nor by reason of the failure to take any
action with respect to any investment which was acquired
pursuant to any such direction in the absence of further
directions of such investment manager or investment committee.
(5) Notwithstanding anything in this Agreement to the contrary,
the Trustee shall be indemnified and saved harmless by the
Company from and against any and all
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personal liability to which the Trustee may be subjected by
carrying out any directions of an investment manager or
investment committee issued pursuant hereto or for failure to
act in the absence of directions of the investment manager or
investment committee including all expenses reasonably
incurred in its defense in the event the Company fails to
provide such defense; provided, however, the Trustee shall not
be so indemnified if it participates knowingly in, or
knowingly undertakes to conceal, an act or omission of an
investment manager or investment committee, having actual
knowledge that such act or omission is a breach of a fiduciary
duty; provided further, however, that the Trustee shall not be
deemed to have knowingly participated in or knowingly
undertaken to conceal an act or omission of an investment
manager or investment committee with knowledge that such act
or omission was a breach of fiduciary duty by merely complying
with directions of an investment manager or investment
committee or for failure to act in the absence of directions
of an investment manager or investment committee. The Trustee
may rely upon any order, certificate, notice, direction or
other documentary confirmation purporting to have been issued
by the investment manager or investment committee which the
Trustee believes to be genuine and to have been issued by the
investment manager or investment committee. The Trustee shall
not be charged with knowledge of the termination of the
appointment of any investment manager or investment committee
until it receives written notice thereof from the Company.
(d) Following a Change of Control, the Trustee shall have the sole and
absolute discretion in the management of the Trust assets and shall
have all the powers set forth under Section 6(b). In investing the
Trust assets, the Trustee shall consider:
(1) the needs of the Plan;
(2) the need for matching of the Trust assets with the liabilities
of the Plan; and
(3) the duty of the Trustee to act solely in the best interests of
the Participants and their Beneficiaries.
(e) The Trustee shall have the right, in its sole discretion, to delegate
its investment responsibility to an investment manager who may be an
affiliate of the Trustee. In the event the Trustee shall exercise this
right, the Trustee shall remain, at all times responsible for the acts
of an investment manager. The Trustee shall have the right to purchase
an insurance policy or an annuity to fund the benefits of the Plan.
(f) Prior to a Change of Control, the Company shall have the right at any
time, and from time to time in its sole discretion, to substitute
assets of equal fair market value for any asset held by the Trust. This
right is exercisable by the Company in a nonfiduciary capacity without
the approval or consent of any person in a fiduciary capacity.
SECTION 7. INSURANCE CONTRACTS
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(a) To the extent that the Trustee is directed by the Company prior to a
Change of Control to make payments from part or all of the Trust Fund
in insurance contracts, the type and amount thereof shall be specified
by the Company. The Trustee shall be under no duty to make inquiry as
to the propriety of the type or amount so specified.
(b) Each insurance contract issued shall provide that the owner thereof
shall have the power to exercise all rights, privileges, options and
elections granted by or permitted under such contract or under the
rules of the insurer.
(c) The Trustee shall have no power to name a beneficiary of the policy to
assign the policy (as distinct from conversion of the policy to a
different form), or to loan to any person the proceeds of any borrowing
against such an insurance policy.
(d) No insurer shall be deemed to be a party to the Trust and an insurer's
obligations shall be measured and determined solely by the terms of
contracts and other agreements executed by the insurer.
SECTION 8. DISPOSITION OF INCOME
(a) Prior to a Change of Control, all income received by the Trust, net of
expenses and taxes, may be returned to the Company or accumulated and
reinvested within the Trust at the direction of the Company.
(b) Following a Change of Control, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested within the
Trust.
SECTION 9. ACCOUNTING BY THE TRUSTEE
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between the
Company and the Trustee within forty-five (45) days following the close of each
calendar year and within forty-five (45) days after the removal or resignation
of the Trustee. The Trustee shall deliver to the Company a written account of
its administration of the Trust during such year or during the period from the
close of the last preceding year to the date of such removal or resignation
setting forth all investments, receipts, disbursements and other transactions
effected by it, including a description of all securities and investments
purchased and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and showing all
cash, securities and other property held in the Trust at the end of such year or
as of the date of such removal or resignation, as the case may be. The Company
may approve such written account by an instrument in writing delivered to the
Trustee. In the absence of the Company's filing with the Trustee objections to
any such written account within ninety (90) days after its receipt, the Company
shall be deemed to have so approved such written account. In such case, or upon
the written approval by the Company of any such written account, the Trustee
shall, to the extent permitted by law, be discharged from all liability to the
Company for its acts or failures to act described by such written account. The
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foregoing, however, shall not preclude the Trustee from having its accounting
settled by a court of competent jurisdiction.
SECTION 10. RESPONSIBILITY OF THE TRUSTEE
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in
like capacity and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims, provided,
however, that the Trustee shall incur no liability to any person for
any action taken pursuant to a direction, request or approval given by
the Company which is contemplated by, and in conformity with, the terms
of the Plan or this Trust Agreement and is given in writing by the
Company. In the event of a dispute between the Company and a party, the
Trustee may apply to a court of competent jurisdiction to resolve the
dispute, subject, however to Section 2(d) hereof.
(b) The Company hereby indemnifies the Trustee against losses, liabilities,
claims, costs and expenses in connection with the administration of the
Trust, unless resulting from the gross negligence or misconduct of
Trustee. To the extent the Company fails to make any payment on account
of an indemnity provided in this Section 10(b), in a reasonably timely
manner, the Trustee may obtain payment from the Trust. If the Trustee
undertakes or defends any litigation arising in connection with this
Trust or to protect a Participant's or Beneficiary's rights under the
Plan, the Company agrees to indemnify the Trustee against the Trustee's
costs, reasonable expenses and liabilities (including, without
limitation, attorneys' fees and expenses) relating thereto and to be
primarily liable for such payments. If the Company does not pay such
costs, expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
(c) Prior to a Change of Control, the Trustee may consult with legal
counsel (who may also be counsel for the Company generally) with
respect to any of its duties or obligations hereunder. Following a
Change of Control the Trustee shall select legal counsel independent
from the Company's counsel and may consult with counsel or other
experts with respect to its duties and with respect to the rights of
Participants or their Beneficiaries under the Plan.
(d) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder and may rely on
any determinations made by such agents and information provided to it
by the Company.
(e) The Trustee shall have, without exclusion, all powers conferred on the
Trustee by applicable law, unless expressly provided otherwise herein.
(f) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any
power that could give this Trust the objective of carrying on a
business and dividing the gains therefrom.
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SECTION 11. COMPENSATION AND EXPENSES OF THE TRUSTEE
The Trustee's compensation shall be as agreed in writing from time to time by
the Company and the Trustee. The Company shall pay all administrative expenses
and the Trustee's fees and shall promptly reimburse the Trustee for any fees and
expenses of its agents or such other costs as the Trustee is entitled to incur
hereunder. If not so paid, the fees and expenses shall be paid from the Trust.
SECTION 12. RESIGNATION AND REMOVAL OF THE TRUSTEE
(a) Prior to a Change of Control, the Trustee may resign at any time by
written notice to the Company, which shall be effective sixty (60) days
after receipt of such notice unless the Company and the Trustee agree
otherwise. Following a Change of Control, if the Trustee resigns, the
resignation shall only be effective after the appointment of a
successor Trustee.
(b) The Trustee may be removed by the Company on sixty (60) days notice or
upon shorter notice accepted by the Trustee prior to a Change of
Control. Subsequent to a Change of Control, the Trustee may only be
removed by the Company with the consent of a majority of the
Participants, after they have been informed of the identity of a
successor trustee.
(c) If the Trustee resigns within two years after a Change of Control, and
if the Company fails to act under Section 10(e) below within a
reasonable period of time following such resignation, the Trustee shall
apply to a court of competent jurisdiction for the appointment of a
successor Trustee or instructions.
(d) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within sixty (60)
days after receipt of notice of resignation, removal or transfer,
unless the Company extends the time limit.
(e) If the Trustee resigns or is removed, a successor shall be appointed by
the Company, in accordance with Section 13 hereof, by the effective
date of resignation or removal under Sections 10(a) or 10(b) above. If
no such appointment has been made, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 13. APPOINTMENT OF SUCCESSOR
(a) If the Trustee resigns or is removed in accordance with Section 12
hereof, the Company may appoint, subject to Section 12, another bank,
not an affiliate of the Company or any other grantor, any third party
national banking association with a market capitalization exceeding
$100,000,000 to replace the Trustee upon resignation or removal. The
successor Trustee shall have all of the rights and powers of the former
Trustee, including
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ownership rights in the Trust. The former Trustee shall execute any
instrument necessary or reasonably requested by the Company or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets,
subject to Sections 8 and 9 hereof. The successor Trustee shall not be
responsible for and the Company shall indemnify and defend the
successor Trustee from any claim or liability resulting from any action
or inaction of any prior Trustee or from any other past event, or any
condition existing at the time it becomes successor Trustee.
SECTION 14. AMENDMENT OR TERMINATION
(a) Prior to a Change of Control, this Trust Agreement may be amended by a
written instrument executed by the Trustee and the Company.
Notwithstanding the foregoing, no such amendment shall conflict with
the terms of the Plan or shall make the Trust revocable after it has
become irrevocable in accordance with Section 1 hereof.
(b) The Trust shall not terminate until the date on which all insurance
premiums listed on the schedule referred to in Section 2(c)(1) have
been paid or otherwise satisfied, and any payments required under
Section 2(c)(3) are completed, or until the Company terminates the
Trust (if prior to a Change of Control).
(c) Prior to a Change of Control, the Company may terminate this Trust at
any time, including prior to the time all benefit payments under the
Plan have been made. All assets in the Trust at termination shall be
returned to the Company.
(d) This Trust Agreement may not be amended or terminated by the Company
for seven (7) years following a Change of Control without the written
consent of a majority of the Participants except, if in the opinion of
counsel satisfactory to the Trustee, such amendment is necessary to
maintain the tax status of this Trust or the inapplicability of ERISA
to this Trust.
SECTION 15. CHANGE OF CONTROL
(a) For purposes of this Trust, the following terms shall be defined as set
forth below:
(1) "Potential Change of Control" shall mean the occurrence of any
one of the following events:
(i) the purchase or other acquisition by any Person of
Beneficial Ownership of five percent (5%) or more of
either the outstanding shares of common stock or the
combined voting power of the Company's then
outstanding voting securities entitled to vote
generally; provided, however, the purchase or other
acquisition by any employee benefit plan (or related
trust) sponsored or maintained by - (I) Equifax Inc.
(to the extent the
14
acquisition occurs as part of the initial
distribution of Company shares on Equifax Inc. shares
held by the plan), (II) the Company, or (III) any
Subsidiary of the Company, shall be disregarded for
purposes of this Section 15(a)(1)(i);
(ii) the announcement by any person of an intention to
take actions which might reasonably result in a
Change of Control of the Company;
(iii) the issuance of a proxy statement by the Company with
respect to an election of directors for which there
is proposed one or more directors who are not
recommended by the Board of Directors of the Company
or its nominating committee, where the election of
such proposed director or directors would result in a
Change of Control; or
(iv) submission to the Incumbent Board (as defined below)
of nominations which, if approved, would change the
Executive Officer configuration of the Company (at
the Executive Vice President level and above) by
fifty percent (50%) or more.
(2) "Change of Control" shall mean the occurrence of any one of
the following events:
(i) Voting Stock Accumulations. The accumulation by any
Person of Beneficial Ownership of twenty percent
(20%) or more of the combined voting power of the
Company's Voting Stock; provided that for purposes of
this Section15(a)(2)(i), a Change of Control will not
be deemed to have occurred if the accumulation of
twenty percent (20%) or more of the voting power of
the Company's Voting Stock results from any
acquisition of Voting Stock (I) directly from the
Company that is approved by the Incumbent Board, (II)
by the Company, (III) by any employee benefit plan
(or related trust) sponsored or maintained by the
Company or any Subsidiary, or (IV) by any Person
pursuant to a Business Combination that complies with
all of the provisions of clauses (I), (II) and (III)
of Section 15(a)(2)(ii);
(ii) Business Combinations. The consummation of a Business
Combination, unless, immediately following that
Business Combination, (I) all or substantially all of
the Persons who were the beneficial owners of Voting
Stock of the Company immediately prior to that
Business Combination beneficially own, directly or
indirectly, more than sixty-six and two-thirds
percent (66-2/3%) of the then outstanding shares of
common stock and the combined voting power of the
then outstanding voting securities entitled to vote
generally in the election of directors of the entity
resulting from that Business Combination (including,
without limitation, an entity that as a result of
that transaction owns the Company or all or
substantially all of the Company's assets either
directly or through one or
15
more subsidiaries) in substantially the same
proportions relative to each other as their
ownership, immediately prior to that Business
Combination, of the Voting Stock of the Company, (II)
no Person (other than the Company, that entity
resulting from that Business Combination, or any
employee benefit plan (or related trust) sponsored or
maintained by the Company, any Eighty Percent (80%)
Subsidiary or that entity resulting from that
Business Combination) beneficially owns, directly or
indirectly, twenty percent (20%) or more of the then
outstanding shares of common stock of the entity
resulting from that Business Combination or the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election
of directors of that entity, and (III) at least a
majority of the members of the Board of Directors of
the entity resulting from that Business Combination
were members of the Incumbent Board at the time of
the execution of the initial agreement or of the
action of the board providing for that Business
Combination;
(iii) Sale of Assets. A sale or other disposition of all or
substantially all of the assets of the Company; or
(iv) Liquidation or Dissolutions. Approval by the
shareholders of the Company of a complete liquidation
or dissolution of the Company, except pursuant to a
Business Combination that complies with all of the
provisions of clauses (I), (II) and (III) of Section
15(a)(2)(ii).
For purposes of this Section 15(a), the following definitions will apply:
"Beneficial Ownership" means beneficial ownership as that term is used
in Rule 13d-3 promulgated under the Exchange Act.
"Business Combination" means a reorganization, merger or consolidation
of the Company.
"Eighty Percent (80%) Subsidiary" means an entity in which the Company
directly or indirectly beneficially owns eighty percent (80%) or more
of the outstanding Voting Stock.
"Exchange Act" means the Securities Exchange Act of 1934, including
amendments, or successor statutes of similar intent.
"Incumbent Board" means a Board of Directors at least a majority of
whom consist of individuals who either are (a) members of the Company's
Board of Directors as of the day after the spinoff of the Company from
Equifax Inc. becomes effective or (b) members who become members of the
Company's Board of Directors subsequent to said date whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least two-thirds (2/3) of the directors then comprising
the Incumbent Board (either by a specific vote or by approval of the
proxy statement of the
16
Company in which that person is named as a nominee for director,
without objection to that nomination), but excluding, for that purpose,
any individual whose initial assumption of office occurs as a result of
an actual or threatened election contest (within the meaning of Rule
14a-11 of the Exchange Act) with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Directors.
"Person" means any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act).
"Subsidiary" means an entity more than fifty percent (50%) of whose
equity interests are owned directly or indirectly by the Company.
"Voting Stock" means the then outstanding securities of an entity
entitled to vote generally in the election of members of that entity's
Board of Directors.
For purposes of this Section 15(a), the Incumbent Board, by a majority vote,
shall have the power to determine on the basis of information known to them (a)
the number of shares beneficially owned by any person, entity or group; (b)
whether there exists an agreement, arrangement or understanding with another as
to matters referred to in this Section 15(a); and (c) such other matters with
respect to which a determination is necessary under this Section 15(a).
(b) The General Counsel of the Company shall have the specific authority to
determine whether a Potential Change of Control or Change of Control
has transpired under the guidance of this Section 15(a) and shall be
required to give the Trustee notice of a Change of Control or Potential
Change of Control. The Trustee shall be entitled to rely upon such
notice, but if the Trustee receives notice of a Potential Change of
Control or Change of Control from another source, the Trustee shall be
required to make its own independent determination.
SECTION 16. MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating
the remaining provisions hereof.
(b) The Company hereby represents and warrants that the Plan has been
established, maintained and administered in accordance with all
applicable law, including without limitation, ERISA. The Company hereby
indemnifies and agrees to hold the Trustee harmless from all
liabilities, including attorney's fees, relating to or arising out of
the establishment, maintenance and administration of the Plan. To the
extent the Company does not pay any of such liabilities in a reasonably
timely manner, the Trustee may obtain payment from the Trust.
(c) Benefits payable to Participants and their Beneficiaries under this
Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered
17
or subjected to attachment, garnishment, levy, execution or other legal
or equitable process.
(d) This Agreement is binding upon the successors and assigns of the
Company and the Trustee.
(e) This Trust Agreement shall be governed by and construed in accordance
with the laws of North Carolina.
IN WITNESS WHEREOF, this Grantor Trust Agreement has been executed on
behalf of the parties hereto on the day and year first above written.
CERTEGY INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Corporate Vice President
of Human Resources
WACHOVIA BANK, N.A.
By: /s/ Xxx X. Xxxx
---------------------------------------
Name: Xxx X. Xxxx
Title: Senior Vice President
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